Kogut v. State

24 A.D.2d 928, 264 N.Y.S.2d 852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1965
• Docket: Claim No. 38643
• Status: Published

Opinion

—Hamm, J.

Appeal by the State from an award of damages for appropriation of land and appeal by the claimants for an increased award for damages allegedly established but not included. At the outset it may be noted that the findings of fact and the award are $21,560 too low because of a clerical mistake, which the State has recognized and explained. Increased by this sum the award is within the range of the testimony and amply warranted by the competent credible evidence, We find nothing in the decision to support the State’s argument of duplication of damages and no erroneous appraisal of the damage has been established. While it may have been error to have considered two sales made to a condemnor in settlement of condemnation suits, the claimants’ expert testified to 11 other sales which were wholly voluntary and we think on this record the alleged error was harmless (cf. Celeste v. State of New York, 15 A D 2d 593). As to the claimants’ appeal it is urged that the award should be increased as a result of the taking of an electrical system and of shrubs within the taking area. However, the court made a finding that, although it did not state separate damages for these improvements, it did take “into consideration their existence and what they added to the whole when considering the land for a proposed sub-division”. The claimants complain also of the court’s refusal to entertain evidence of the cost of preparing a survey of their property after the taking but we are not satisfied that the court’s evaluation was required to give effect to this alleged item of damage. Judgment modified, on the law and the facts, in accordance with the concession as to a certain clerical error, and, as so modified, affirmed, with costs to respondents-appellants. Gibson, P. J., Herlihy, Reynolds and Aulisi, JJ., concur.