In re McClellan — 142 N.Y.S. 859

Majority

p. 859

In re McCLELLAN et al.

(Supreme Court, Appellate Division, First Department.

July 10, 1913.)

Headnote

Eminent Domain (§ 150^[1] )—Public Improvements—Assessment of Damages— Amuunt of Damages.

In a proceeding to assess an abutting owner’s damages from the construction of an elevated structure in a street, an award of approximately two-thirds of the amount of damage shown by the testimony most favorable to the city was too small.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 402; Dec. Dig. § 150.*]

Appeal from Special Term, New York County.

■ Application by George B. McClellan and others, constituting the Board of Rapid Transit Railroad Commissioners, for the appointment of commissioners of appraisal, etc. From an order overruling the objection of John Wynne to an award of damages in his favor by such commissioners of appraisal, he appeals. Reversed, and proceedings remitted to the commissioners to make a new award.

Argued before INGRAHAM, P. J„ and LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.

Benjamin Trapnell, of New York City, for appellant.

Charles J. Nehrbas, of New York City, for respondent.

The premises in question are located on the southerly side of Westchester avenue, and the award was $12,500 for fee damage and $2,250 for rental damage. The structure at the point in question is of the usual elevated type. Each of the lots has a frontage of 27 feet by an average depth of about 125 feet. The buildings are three five-story apartment houses.

Two experts only were called to testify to value. The appellant’s expert testified to a depreciation in fee value of $32,500, and to a cor- ' respondingly large rental damage. The city’s expert testified that the fee damage was $18,625.11. The fee value he placed upon the three lots of land made the second worth less than $500 more than the first, and the third $490 more than the second, or a difference of less than $1,000 between the first and third. The value of each of the three houses was practically the same. In other words; the testimony of the city’s witness shows unquestionably that he regarded the three houses and lots as practically of equal value, and he did not attempt to assign to one any greater or less damage than to the other. Nor did their situation warrant any such difference. Taking the fee depreciation testified to by the city’s expert, $18,625.11, and dividing it by three, shows that the award of the commissioners was practically two-thirds of the amount the expert for the city testified was the fee damage suffered by the three houses. The appellant argues, and .we think properly, that this fairly gives "rise to a presumption of clerical error, or that by some mistake the commissioners gave the appellant only two-thirds of what he was clearly entitled to, based upon the city’s testimony. But, whether there was any such clerical mistake or not, we think, unless

p. 860

the testimony most favorable to the city is to be wholly disregarded, that the commissioners manifestly awarded.appellant too small a sum for fee damage. The same expert for the city testified that the rental damage was $51 per month per house, or $153 for the three houses, equaling $1,836 per year; also, that he adopted the ratio of .981 pel cent, of rental value to fee value. Applying that to his testimony on fee damage confirms the conclusion that the fee damage was the same as to all three houses.

. The order, so far as appealed from, is reversed, with $10 costs and disbursements, and the proceedings remitted to the commissioners to make a new award in accordance with this opinion.