Turner v. Mutual Benefit Health & Accident Ass'n

5 A.D.2d 951, 172 N.Y.S.2d 571, 1958 N.Y. App. Div. LEXIS 6757

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1958
• Status: Published

Opinion

Judgment reversed on the law and facts and a new trial granted, with costs to the claimant-appellant to abide the event. Cross appeal by the State dismissed, without costs. Memorandum: The Court of Claims held that there was a failure of proof of value on the part of the claimants because all the valuations testified to by the experts for the claimants had been based upon the assumption of a unity of ownership, whereas, under the conclusion reached by the court after the trial, one of the parcels involved was owned by one of two brothers in severalty and the other parcels were owned by the two brothers as tenants in common. The court adopted, as the basis of its award, the valuation of the separate parcels by an expert for the State. The claimants appeal on the ground of inadequacy. They contend that one of their experts had given competent testimony as to the value of the land in separate parcels. The Court of Claims construed the expert’s testimony differently but, even if the court’s construction of the testimony was correct, the court should have given the claimants an opportunity to clarify or to supplement the proof of value. The State cross-appealed upon the ground that the claimants’ proof of title to some of the parcels by adverse possession was insufficient. In our opinion, the proof was adequate to establish title prima facie. The State will have an opportunity upon .the new trial to offer any additional proof on the issue, if it wishes to do so. All concur. ('Cross appeals from a judgment of the Court of Claims, for claimant in an aetion for damages for appropriation of realty.)

Present — MeCum, P. J., Williams, Bastow, Goldman and Halpern, JJ.