Majority
p. 861In the Matter of the Application of The City of New York, Relative to Acquiring Title, etc., to the Lands, etc., and Lands under Water Required for the Purpose of Establishing a Public Beach between the Southerly Prolongation of the Easterly Side of Ocean Parkway and the Prolongation of the Westerly Line of West Thirty-seventh Street, etc., in the Borough of Brooklyn, City of New York. Tilyou Realty Company, Appellant, v. City of New York and Iron Steamboat Company of New Jersey, Respondents.
Decree, in so far as appealed from, unanimously affirmed, with costs. This appeal does not affect parcel 32. We have determined in the Feltman Case (Matter of City of New York [Public Beach], 230 App. Div. 299 ) and in the Kramer Case (Matter of City of New York [Public Beach], ante, p. 407, decided herewith) that there could be no award for land under water. Any right the appellant has to damages over and above that awarded to it for parcels 32A, 70 and 71 must arise from the decision in the Kramer Case (supra), herewith decided. The finding as to the value of the leasehold of the respondent Iron Steamboat Company of New Jersey is based upon evidence
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supporting it. As the appellant has been given a fixed award for the pier and its appurtenances out of which is to be paid the sum awarded to the lessee, a retrial of the issue of leasehold value is not required. Present ■—■ Lazansky, P. J., Young, • Kapper, Hagarty and Carswell, JJ.