In re Davis

254 A.D. 636, 3 N.Y.S.2d 289, 1938 N.Y. App. Div. LEXIS 6811

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1938
• Status: Published

Opinion

Final order and judgment affirmed, with costs. Certain findings of fact disapproved and reversed and conclusion of law disapproved in part. Memorandum: Our review of the record in this proceeding leads to the conclusion that the values of the three separate properties involved, as fixed by the judgment herein, are supported by proof of various factors properly to be considered in determining the value of real estate for purposes of assessment and taxation. (People ex rel. Strong v. Hart, 216 N. Y. 513, 517; People ex rel. Sebring v. Dowd, 206 App. Div. 727, 728 ; Heiman v. Bishop, 272 N. Y. 83, 87, 88.) In reaching that conclusion, however, we disapprove the statement in the decision characterizing the testimony of various witnesses, which statement comprises what is termed a “ finding of fact ” and is designated as “ fourteenth.” Furthermore, even though we cannot say from the decision what weight, if any, the Special Term gave to proof of the value of the property known as 400-402 South Salina street based upon a capitalization of the net annual income therefrom, we disapprove the seventh finding of fact in so far as it includes (1) “ Interest on mortgage ” as an item of expense to be considered in capitalizing net annual income from that property, and (2) so much of the item of “ insurance ” as constitutes the cost of fire risk coverage in excess of the value of the building as claimed by the relator'in this proceeding. We also disapprove the “ third ” conclusion of law in so far as it determines that the three assessments reviewed in this proceeding “ constitute a double assessment of said real properties.” All concur. (The order and judgment reduce the assessment on certain real property.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.