McNitt v. State

Appellate Division of the Supreme Court of New York

McNitt v. State

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 25, 1965

DocketClaim No. 41585

StatusPublished

Cited by3 cases

This text of 24 A.D.2d 544 (McNitt v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNitt v. State, 24 A.D.2d 544, 261 N.Y.S.2d 422, 1965 N.Y. App. Div. LEXIS 3794 (N.Y. Ct. App. 1965).

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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.

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—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.

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Bluebook (online)

24 A.D.2d 544, 261 N.Y.S.2d 422, 1965 N.Y. App. Div. LEXIS 3794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnitt-v-state-nyappdiv-1965.

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