In re City of New York — 8 N.Y.2d 824

Majority

p. 824

In the Matter of the City of New York, Respondent, on Behalf of the New York City Housing Authority, Relative to Acquiring Title to Real Property Located within the Block Bounded by Franklin D. Roosevelt Drive, and Other Streets in the Borough of Manhattan, City of New York, for a New York State-Aided Low Rent Public Housing Project Known as Woodrow Wilson Houses. Eugene Gandolfo et al., Appellants.

Argued March 22, 1960;

decided May 19, 1960.

p. 826

Samuel Goldstein, Darnel J. Pinsky, Bernard H. Friedman and Arthur D. Goldstein for Eugene Gandolfo et al., appellants.

Walter R. Gelles, Leffert Holz and Bernard M. Kaufman for Labette Realty Corporation, appellant.

p. 827

George Bergen, Morris Eder and Harold L. Leddy for Issy Monaskefsky, appellant.

David I. Shivitz for Ryma Corporation, appellant.

James J. Chambers for Therlian Realty Corporation, appellant.

Charles H. Tenney, Corporation Counsel (Irving Genn and Seymour B. Quel of counsel), for respondent.

Order of the Appellate Division modified with respect to damage parcels Nos. 2, 7 and 9 and the decree of Special Term reinstated as to said parcels, with costs to each of said claimants in this conrt and in the Appellate Division, upon the ground that the weight of evidence more nearly supports the determination of Special Term with respect to those parcels and, as so modified, the order is in all other respects affirmed, with one bill of costs to respondent against appellants owners of damage parcels Nos. 5 and 10. No opinion.

Concur: Chief Judge Desmond and Judges Fuld, Froessel, Van Voorhis and Foster. Judges Dye and Burke dissent, in part, and vote to affirm the order of the Appellate Division respecting damage parcel No. 7 on the ground that the evidence of the actual gallonage sold, which is the commonly accepted gauge in the oil industry of the lease value of real property, supports the determination of the Appellate Division. (See McMichael, Appraising Manual [4th ed.], pp. 319, 325; Hannoch, The Unpredictable Service Station [The Appraisal Journal, July, 1957, p. 373].)