In re Simmons

New York Supreme Court

In re Simmons

117 N.Y.S. 64, 1909 N.Y. Misc. LEXIS 637

DecidedMay 1, 1909

StatusPublished

This text of 117 N.Y.S. 64 (In re Simmons) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Simmons, 117 N.Y.S. 64, 1909 N.Y. Misc. LEXIS 637 (N.Y. Super. Ct. 1909).

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Opinion

TOMPKINS, J.

After a careful consideration of the testimony given before the commissioners and the briefs submitted by counsel, and an examination of the photographs, I have reached the conclusion that the evidence does not establish the fact that the tracts of land in question are marketable as building lots, or that they have a market value as building lots, or that purchasers for such lots as the maps show the plots to have been subdivided into, and upon which lots the defendants’ experts fixed, separate values, can be found. Hence the testimony of the witnesses fixing values upon the separate lots into which the tracts have been subdivided on the maps was not competent or material on the question of the value of the tracts in their entirety or as a whole.

Parcel No. 1 consists of between 1 and 2 acres of cleared land, and is an irregular triangle in shape, with the apex at the corner of Jerome avenue and Central avenue. Parcel No. 3 consists of about 3% acres of low land, thickly covered with brush and trees, -and it is also an irregular triangle. No improvements have been made on either parcel, no streets laid out or graded, and no lot has .been sold from either tract. The photographs show that the large tract is covered by dense woods and a heavy undergrowth; and that its surface is rough and irregular. They show a property that is not likely to become marketable as building lots for some time to come.

It seems to me that the proofs before the commissioners did not justify the admission of testimony as to the value of the tracts by lots, or the making of awards based upon the assumption that the property is valuable and marketable as lots; and my conclusion is that the evidence of values should have been limited to each of the two parcels as a whole.

The report of the commissioners is set aside, and new commissioners will be appointed.

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TOMPKINS, J.

After a careful consideration of the testimony given before the commissioners and the briefs submitted by counsel, and an examination of the photographs, I have reached the conclusion that the evidence does not establish the fact that the tracts of land in question are marketable as building lots, or that they have a market value as building lots, or that purchasers for such lots as the maps show the plots to have been subdivided into, and upon which lots the defendants’ experts fixed, separate values, can be found. Hence the testimony of the witnesses fixing values upon the separate lots into which the tracts have been subdivided on the maps was not competent or material on the question of the value of the tracts in their entirety or as a whole.

Parcel No. 1 consists of between 1 and 2 acres of cleared land, and is an irregular triangle in shape, with the apex at the corner of Jerome avenue and Central avenue. Parcel No. 3 consists of about 3% acres of low land, thickly covered with brush and trees, -and it is also an irregular triangle. No improvements have been made on either parcel, no streets laid out or graded, and no lot has .been sold from either tract. The photographs show that the large tract is covered by dense woods and a heavy undergrowth; and that its surface is rough and irregular. They show a property that is not likely to become marketable as building lots for some time to come.

It seems to me that the proofs before the commissioners did not justify the admission of testimony as to the value of the tracts by lots, or the making of awards based upon the assumption that the property is valuable and marketable as lots; and my conclusion is that the evidence of values should have been limited to each of the two parcels as a whole.

The report of the commissioners is set aside, and new commissioners will be appointed.

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Bluebook (online)

117 N.Y.S. 64, 1909 N.Y. Misc. LEXIS 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-simmons-nysupct-1909.