McNitt v. State

24 A.D.2d 544, 261 N.Y.S.2d 422, 1965 N.Y. App. Div. LEXIS 3794

Opinion

—Judgment unanimously modified on the law and facts, by reducing the amount to $3,575, and interest, and as so modified judgment affirmed, with costs to respondent. Memorandum: The Court of Claims Judge awarded $2,000 for consequential damage, and $3,500 for direct damage. The amount awarded for consequential damage was within the range of the testimony of the experts and should be affirmed. However, as to the award of $3,500 for direct damage, this was $1,925 higher than the testimony most favorable to claimant. In other words, there is no basis in the record for an award in that amount. Nor can a view of the property act as a substitute for testimony. (Matter of City of New York [A. & W. Realty Corp.], 1 N Y 2d 428, 433; George’s Bake Shop v. State of New York, 21 A D 2d 423, 424, 425.) This part of the award should be reduced to $1,575, making the total amount $3,575, and interest. (Appeal from judgment of Court of 'Claims for claimant in an action for damages for permanent appropriation of realty.) Present — Williams, P. J., Bastow, Goldman and Henry, JJ.