In re the City of New York

20 A.D.2d 636, 1964 N.Y. App. Div. LEXIS 4495

Opinion

Final decree, insofar as it makes an award for Damage Parcel 24, unanimously reversed, on the law, on the facts and in the exercise of discretion, and a new trial ordered, with costs to elaimants-appellants. There is a failure of proof on the part of petitioner. Petitioner’s expert appraised the premises as a rooming house on a net lease basis. This was error since the building is an apartment house. Consequently, the capitalization of 12% based on the appraisal of the premises as a rooming house is not useful. We are not entitled to substitute capitalization rates not found in the evidence. (Matter of City of New York [A. & W. Realty Corp.], 1 N Y 2d 428.) Since that is the only testimony on behalf of the petitioner concerning capitalization, the interests of justice require a new trial. Concur — Breitel, J. P., Rabin, McNally, Stevens and Steuer, JJ.