In re the City of New York — 13 A.D.2d 780

Majority

p. 780

In the Matter of the City of New York, Appellant-Respondent, Relative to Acquiring Title to Real Property Within the Area Bounded by Almeda Avenue and Other Streets as a Site for a Public Housing Project to be Known as Edgemere Houses, in the Borough of Queens. Jacob Schneider et al., Doing Business as Ajay Realty Company, et al., Respondents; Vernam Estates, Inc., Respondent-Appellant.

In this condemnation proceeding the parties cross-appeal as follows from the final decree of the Supreme Court, Kings County, made November 16, 1959, after a non jury trial: (1) The condemnor, City of New York, appeals from so much of the decree as makes fee or land awards for Damage Parcels Nos. 21, 36 and 70, and a fixture or improvement award for Damage Parcel -No. 70. (2) Claimant, Vernam Estates, Inc., appeals from so much of the decree as makes a fee or land award for Damage Parcel No. 70. On the city’s appeal: Decree modified on the law and the facts by striking out the fee or land award of $68,000 for Damage Parcel No. 36; and proceeding remitted to Special Term for a re-evaluation as to such parcel, the re-evaluation to be made without regard to the so-called “ conjunctive use factor.” As so modified, decree insofar as appealed from affirmed, without costs. Appeal by claimant as to Damage Parcel No. 70, dismissed, such appeal having been withdrawn by it upon the oral argument in this court. Motion by claimant, Edgemere Aviation Corporation (renewed by permission of this court granted by order dated March 28, 1960), to dismiss the city’s appeal from the portion of the final decree which makes a fixture or improvement award of $6,750 for Damage Parcel No. 70, denied. With respect to the land award for Damage Parcel No. 36, we cannot tell on this record what allowance was made .therein based upon the factor of conjunctive use value. In our view, that factor was not a proper element of damage here, and should not have been" considered. Accordingly, the proceeding is remitted to Special Term for the purpose of making a proper, re-evaluation as to Damage Parcel No. 36.. Nolan, P. J., Ughetta, Kleinfeld,- Christ and Brennan, JJ., concur.