Finch, J.
This appeal presents for consideration the right of owners of real property, taken in condemnation by the city of New York, to the admission of evidence directly bearing upon the availability of said premises for apartment house sites.
The city of New York desired to enlarge Inwood Hill Park and Isham Park and to extend Payson avenue. It, therefore, commenced this proceeding in condemnation to acquire certain additional lands, pursuant to authority conferred by the Greater New York Charter, section 970 (added by Laws of 1915, chap. 606, as amd. by Laws of 1922, chap. 563). Proceedings were duly had, whereby title to said lands, including those of the appellants, vested in the city as of April 21, 1925. After a trial at Special Term, a first partial and separate final decree was made and entered awarding compensation to the owners of the several parcels of real property taken. From said decree certain of the property owners appeal, upon the ground that the amounts awarded are not commensurate with the market value of the property.
The property taken in this proceeding comprises a large tract of land, approximately 108 acres. It is bounded on the south by Dyckman street, on the west by Inwood Hill Park, on the north by Inwood Hill Park, Harlem Ship Canal and by Isham Park, and on the east by Seaman avenue and Payson avenue. The greater portion of the property of the appellants included in the lands so taken, is located upon a plateau about 220 feet above sea level, one of the highest points upon Manhattan island, and unquestionably a location possessing unusual advantages for residential purposes. One of the experts of the city described some of these advantages as follows: “ Well, it is set apart from the business districts and from the traffic centers; it is surrounded by land the contour of which will leave it for all time in my imagination as a place upon which to grow trees, which has its valuable considerations. * * * The outlook — you have from parts of the property taken, you have what I would consider permanent light and air over the Hudson Biver, and a view north and south on the [43]*43Hudson River and westerly to the Palisades. * * * I know of no place on Manhattan Island that is like it. * * * There is no better outlook on Manhattan Island than you have from the top of that hill, the scenic outlook.”
Upon the date when the value of the property in question was determinable (i. e., April 21, 1925, when title vested in the city), it had the following means of transportation: The Kingsbridge surface line along Broadway, connecting with the Marble Hill station of New York Central railroad, and with the crosstown line of the Union Railway system; the Broadway division of the Inter-borough Rapid Transit Company, with stations at Dyckman street, Two Hundred and Seventh street and Two Hundred and Fifteenth streets, and bus service on Dyckman street from the station to the ferry. In addition, there had been approved by the board of estimate and apportionment and by the mayor, the construction of a new line of rapid transit to be known as the Washington Heights Municipal Subway, extending to Dyckman street adjacent to this property and on Broadway as far as Two Hundred and Sixteenth street. The appellants claimed that -with its natural advantages and its transportation facilities, the property was available for use as apartment house sites and that such availability should be given due consideration in determining its market value. In support of this contention testimony was adducéd on behalf of the appellants that the section of the city adjacent to their lands had been quickly developed with apartment houses since the creation in 1917 of Inwood Hill Park, followed by a great increase in values. The appellants claimed that their lands were equally available for this class of development. They attempted to show that it was both practical and reasonable to apply the lands to that use, by offering in evidence maps of proposed streets and sub-surface improvements and evidence of the cost of constructing the same, also topographical maps showing existing grades and necessary changes of grade in connection with the proposed new streets. The city objected to the receipt of this evidence, claiming that the lands were not available for use as apartment house sites because the tract lacked streets, sewers and other sub-surface improvements required by law as conditions precedent to the erection of apartment houses and that the maps offered had not been approved by the city. The court sustained the objection and excluded all the evidence, with the exception of one map covering a portion only of the property, upon the ground that although the plan proposed by the appellants for the development of the property was physically possible, its actual consummation was highly improbable, because the city had withheld its approval of the maps and plans filed by [44]*44the appellants, and there was practically no likelihood of the city ever approving such plans in view of its contemplated taking of the property for park purposes. Although appellants’ experts were permitted to express their opinion of the value of these lands based upon availability for apartment houses, the value of this testimony was in effect destroyed by the admission of said experts upon cross-examination that the property could not be used for this purpose without the installation of street and sewer improvements. The awards show that the court rejected valuations based upon apartment house use.
In support of this result, the respondent calls attention to the decision reached on the trial of the former Inwood Hill Park proceeding affecting property on the westerly ridge, title to which vested in the city on December 15, 1917. (Matter of City of New York [Inwood Hill Park], 197 App. Div. 431.) It was there held that the contention of the owners of the property taken that said property was available for apartment house use, was fanciful and not sustained by the facts. In that case, however, the court received the maps and other evidence offered in support of this contention. That case was decided upon the situation as it then existed, in the light of all the evidence which the owners adduced. The appellants contend that there has been a great improvement in the transportation situation since 1917 and a rapid development of the neighboring property, particularly with apartment houses, thus showing that the site is likewise so available. If upon a new trial the facts adduced sustain this contention, to them we must bow for the facts must be masters of us all. The decision upon the former proceeding in 1917 is thus, obviously, of no bearing upon the present appeal, which involves solely the improper exclusion of material evidence for consideration.
By the exclusion of the aforesaid testimony the appellants were deprived of the right to submit proof of an element of, value, which under well-settled principles of law, they were entitled to have considered in determining the market value of the property taken. In determining this issue the appellants were not limited by the present condition or use of the property. They were entitled to show the most profitable use for which it was available. According to the testimony, such property could most profitably be used for apartment house sites. The appellants, therefore, were entitled to adduce all testimony tending to show the availability of the property for such use. As was said by Mr. Justice McAvoy in Matter of City of New York (213 App. Div. 187): “ The award is to be made for the fair market value for all available uses and purposes.
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Finch, J.
This appeal presents for consideration the right of owners of real property, taken in condemnation by the city of New York, to the admission of evidence directly bearing upon the availability of said premises for apartment house sites.
The city of New York desired to enlarge Inwood Hill Park and Isham Park and to extend Payson avenue. It, therefore, commenced this proceeding in condemnation to acquire certain additional lands, pursuant to authority conferred by the Greater New York Charter, section 970 (added by Laws of 1915, chap. 606, as amd. by Laws of 1922, chap. 563). Proceedings were duly had, whereby title to said lands, including those of the appellants, vested in the city as of April 21, 1925. After a trial at Special Term, a first partial and separate final decree was made and entered awarding compensation to the owners of the several parcels of real property taken. From said decree certain of the property owners appeal, upon the ground that the amounts awarded are not commensurate with the market value of the property.
The property taken in this proceeding comprises a large tract of land, approximately 108 acres. It is bounded on the south by Dyckman street, on the west by Inwood Hill Park, on the north by Inwood Hill Park, Harlem Ship Canal and by Isham Park, and on the east by Seaman avenue and Payson avenue. The greater portion of the property of the appellants included in the lands so taken, is located upon a plateau about 220 feet above sea level, one of the highest points upon Manhattan island, and unquestionably a location possessing unusual advantages for residential purposes. One of the experts of the city described some of these advantages as follows: “ Well, it is set apart from the business districts and from the traffic centers; it is surrounded by land the contour of which will leave it for all time in my imagination as a place upon which to grow trees, which has its valuable considerations. * * * The outlook — you have from parts of the property taken, you have what I would consider permanent light and air over the Hudson Biver, and a view north and south on the [43]*43Hudson River and westerly to the Palisades. * * * I know of no place on Manhattan Island that is like it. * * * There is no better outlook on Manhattan Island than you have from the top of that hill, the scenic outlook.”
Upon the date when the value of the property in question was determinable (i. e., April 21, 1925, when title vested in the city), it had the following means of transportation: The Kingsbridge surface line along Broadway, connecting with the Marble Hill station of New York Central railroad, and with the crosstown line of the Union Railway system; the Broadway division of the Inter-borough Rapid Transit Company, with stations at Dyckman street, Two Hundred and Seventh street and Two Hundred and Fifteenth streets, and bus service on Dyckman street from the station to the ferry. In addition, there had been approved by the board of estimate and apportionment and by the mayor, the construction of a new line of rapid transit to be known as the Washington Heights Municipal Subway, extending to Dyckman street adjacent to this property and on Broadway as far as Two Hundred and Sixteenth street. The appellants claimed that -with its natural advantages and its transportation facilities, the property was available for use as apartment house sites and that such availability should be given due consideration in determining its market value. In support of this contention testimony was adducéd on behalf of the appellants that the section of the city adjacent to their lands had been quickly developed with apartment houses since the creation in 1917 of Inwood Hill Park, followed by a great increase in values. The appellants claimed that their lands were equally available for this class of development. They attempted to show that it was both practical and reasonable to apply the lands to that use, by offering in evidence maps of proposed streets and sub-surface improvements and evidence of the cost of constructing the same, also topographical maps showing existing grades and necessary changes of grade in connection with the proposed new streets. The city objected to the receipt of this evidence, claiming that the lands were not available for use as apartment house sites because the tract lacked streets, sewers and other sub-surface improvements required by law as conditions precedent to the erection of apartment houses and that the maps offered had not been approved by the city. The court sustained the objection and excluded all the evidence, with the exception of one map covering a portion only of the property, upon the ground that although the plan proposed by the appellants for the development of the property was physically possible, its actual consummation was highly improbable, because the city had withheld its approval of the maps and plans filed by [44]*44the appellants, and there was practically no likelihood of the city ever approving such plans in view of its contemplated taking of the property for park purposes. Although appellants’ experts were permitted to express their opinion of the value of these lands based upon availability for apartment houses, the value of this testimony was in effect destroyed by the admission of said experts upon cross-examination that the property could not be used for this purpose without the installation of street and sewer improvements. The awards show that the court rejected valuations based upon apartment house use.
In support of this result, the respondent calls attention to the decision reached on the trial of the former Inwood Hill Park proceeding affecting property on the westerly ridge, title to which vested in the city on December 15, 1917. (Matter of City of New York [Inwood Hill Park], 197 App. Div. 431.) It was there held that the contention of the owners of the property taken that said property was available for apartment house use, was fanciful and not sustained by the facts. In that case, however, the court received the maps and other evidence offered in support of this contention. That case was decided upon the situation as it then existed, in the light of all the evidence which the owners adduced. The appellants contend that there has been a great improvement in the transportation situation since 1917 and a rapid development of the neighboring property, particularly with apartment houses, thus showing that the site is likewise so available. If upon a new trial the facts adduced sustain this contention, to them we must bow for the facts must be masters of us all. The decision upon the former proceeding in 1917 is thus, obviously, of no bearing upon the present appeal, which involves solely the improper exclusion of material evidence for consideration.
By the exclusion of the aforesaid testimony the appellants were deprived of the right to submit proof of an element of, value, which under well-settled principles of law, they were entitled to have considered in determining the market value of the property taken. In determining this issue the appellants were not limited by the present condition or use of the property. They were entitled to show the most profitable use for which it was available. According to the testimony, such property could most profitably be used for apartment house sites. The appellants, therefore, were entitled to adduce all testimony tending to show the availability of the property for such use. As was said by Mr. Justice McAvoy in Matter of City of New York (213 App. Div. 187): “ The award is to be made for the fair market value for all available uses and purposes. It is true, too, that market value includes every element of usefulness [45]*45and advantage in the property, if it possesses advantages of location or is available for any useful purpose whatever. The fact that the owner has not made the precise use of the place which it is claimed would be its most advantageous employment does not militate against his right to have the value assessed which would make for the highest compensation.
“ We said in Matter of Daly v. Smith (18 App. Div. 194, 197): ‘ It is doubtless true, and settled by authority, that the landowner is not limited in compensation to the use which he makes of his property, but is entitled to receive its greatest value for any purpose.’ And in Matter of City of New York (198 N. Y. 84, 88) the court said: ‘ When the State compels a man to give up his land for public use, and permits him to recover, not what he thinks it is worth, but only its fair market value, he should at least have the right to prove every element that can fairly enter into the question of market value.’ ”
Also, in Matter of Bronx Parkway Commission (192 App. Div. 412; affd., 230 N. Y. 607) it was said: “ The alleged error of erroneous principle is the adoption of testimony of 1 speculative development.’ The defendant adduced considerable testimony from witnesses of whom several were of high standing and of great experience, as to the availability of this land for many different industrial purposes. The petitioner, in turn, called several witnesses of like standing, with particular reference to the availability of the land for railway purposes, who testified to the remoteness of such requirement and the cost of such improvement.
“ The fact that the land is vacant makes such testimony in a sense ' speculative,’ which word in its origin implies a vision or an outlook. But the marketable value of the land may be considered in the light of its prospective use. Such is the significance of the word ‘ available ’ in the expression of the Supreme Court of the United States, ‘ its fair market value for all available uses and purposes.’ (United States v. Chandler-Dunbar Co., 229 U. S. 81.) We have stated the rule in Matter of Bronx Parkway Commission (191 App. Div. 212, per Putnam, J.). And as to the competency, see, also, Matter of Daly v. Smith (18 App. Div. 197, Cullen, J.); Matter of Simmons (Ashokan Reservoir, Sec. No. 6) (130 id. 350; affd., 195 N. Y. 573); City of Syracuse v. Stacey, No. 1 (45 App. Div. 254; affd., 169 N. Y. 231); Matter of Gilroy (85 Hun, 424); 2 Lewis Em. Dom. [3d ed.] § 707. In Matter of Gilroy (85 Hun, 424), the court, per Willard Bartlett, J., in a learned discussion says, after citation of Alloway v. Nashville (88 Tenn. 510): ‘ In the case last cited it is well said that market value “ includes every element of usefulness and advantage in the property. If it "be [46]*46useful for agriculture or for residence purposes, if it has adaptability for a reservoir site or for the operation of machinery, if it contains a quarry of stone or a mine of precious metals, if it possesses advantages of location or availability for any useful purpose whatever, all these belong to the owner, and are to be considered in estimating its value. * * * ” ’ ”
The exclusion of evidence bearing directly upon this question, ■ under fundamental principles, requires a reversal of the decree, because, as was well stated in the early case of Rochester & Syracuse R. R. Co. v. Budlong (6 How. Pr. 467): “ We do not undertake to pass upon the amount of compensation awarded by the commissioners, whether it is too great or too small. Nor should we feel at liberty to interfere with the report upon that ground, unless the evidence of injustice was palpable upon its face. It is sufficient that the appellant was deprived of evidence that he was entitled to have considered, the judgment of intelligent and competent witnesses, to call upon the court to set the appraisal aside. Whether the evidence offered and rejected improperly, would have influenced the decision had it been received and weighed, it is not necessary to decide. We are to presume, however, that it would have received its proper attention, and had-its due weight in the decision.
“It is enough that the appellant was entitled to it, and-that it might, had it been received and considered, [have] led to a more favorable determination in his favor. The report and appraisal must, therefore, be set aside, and a new appraisal ordered before new commissioners.”
The respondent urges, however, that the case at bar should be excepted from this rule of general application, because the contemplated taking by the city of lands adjacent to the then existing parks, made it practically certain that the city would not approve of plans for the development of such lands for apartment house sites and thus render them available for that use. This contention is untenable. The city could not lawfully thus deprive the owners of the lands taken of their right to receive their true market value. Carried to its logical conclusion, to sustain this contention of the respondent would enable it to prevent any development whatsoever of lands which it might desire to acquire at some time in the future, for the purpose of preventing enhancement of the value of said lands. Such a contention is unconscionable and does violence to established principles of law and equity. As was said by Judge Cullen in Matter of Rogers Avenue (29 Abb. N. C. 361): “ So the right to property includes tbe right to use that property for any lawful purpose of profit to the owner. (People v. Marx, 3 N. Y. Crim. It. 200.) Whenever that right is restricted, property [47]*47is taken within the meaning of the Constitution. Doubtless, all property is subject to the police power of the State and to the rule sic utere tuo, etc. But, palpably, an enactment that one shall not improve his property, in order that in case the public should acquire it, it may purchase it cheap, is no exercise of the police power.”
This same principle has been widely adopted and applied (Moulton v. Newburyport Water Co., 137 Mass. 163, 167).
In England, in Matter of Lucas and Chesterfield Water Board ([1909] 1 K. B. 16), a case involving the ascertainment of damages upon the condemnation of lands by a public agency for a water reservoir, it was urged that the availability of the lands for the use for which they were taken should not be considered, because the public agency alone had the right to install a reservoir, and without its consent the owner would have no right to make such a development himself. This contention was rejected as Immoral and the rule of law laid down that the owner was entitled to receive the fair value of his land, having regard to its special adaptability and without regard to the possibility of preventing such use by the withholding of any necessary consent.
The owner of lands being entitled to their fair market value for the most profitable use for which the property is available, this use cannot be cut down because the condemnor is in a .position to refuse a consent necessary to make available the lands for such use and does so refuse because of the effect upon the price in a contemplated condemnation. Each owner, so long as he is holding the property, is entitled to be considered in the same position as if his lands were not to be sought in condemnation. The appellants having been denied the right of submitting evidence vital to their contention that the property taken was available for the most profitable use, it follows that the decree appealed from should be reversed, with costs to the appellants, and the proceeding remitted to Special Term for rehearing.
McAvoy and O’Malley, JJ., concur; - Dowling, P. J., and Martin, J., dissent.