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October 9, 1939


The opinion of the court was delivered by: ABRUZZO

ABRUZZO, District Judge.

This is a motion to confirm the report of the Commissioners, appointed by this Court on the 28th day of December, 1938. The petitioner-plaintiff under the power of eminent domain acquired certain land for an addition to Mitchel Field in the Town of Hempstead, County of Nassau. This commission was appointed for the purpose of holding hearings upon the value of the various damage parcels comprising this land. The voluminous report of the commissioners was filed in this Court on July 11, 1939; and the petitioner-plaintiff has made this motion to confirm that report.

Many of the claimants have made no objections to the report. Some have appeared by attorneys in opposition to the motion. Others, upon the return date of the motion, appeared in person to voice their objections; and some wrote letters to the Court setting forth their reasons why the report should not be confirmed.

 The Court has carefully considered the report of the Commissioners, as well as the briefs, affidavits and letters submitted in opposition to the confirmation of the commissioners' report. As to the damage parcels where objections have been filed either by briefs, affidavits or letters, the Court has made a personal inspection of these particular damage parcels.

 Damage Parcel No. 5 owned by Nat J. DeBare

 This claimant objects to the report of the commissioners because he contends their award was insufficient and inadequate and was less than the damages sustained by this particular claimant.

 This parcel includes lots Nos. 1 to 43 on Map of Shirley Gardens, filed in the office of the clerk of Nassau County as Map No. 1057. The assessed valuation is $7,840.

 $7,100 was the award made by the Commissioners. This property extends along a dirt road, known as Roy Avenue on the map. This road, however, is not physically open and cannot be seen to the naked eye, except for a distance of 200 feet from Fulton Avenue. A view of the property shows the forty-three lots to be one piece of grounds.

 The claimant sought to prove that this road extends further than the 200 feet. Such a road is marked out on the filed map, but as heretofore mentioned no such road can be seen from a view of the premises. It is uncertain whether Roy Avenue would have ever been extended beyond the 200 feet now existing.

 The claimant further contends that he had access over the 200 feet of Roy Avenue out to Fulton Avenue for all of his lots by reason of an easement. He sought to introduce into evidence a deed granting him an easement by the owner of Damage Parcel No. 6. This deed was not received in evidence by the Commissioners; but assuming that it had been, the easement would be binding only on the owner of Damage Parcel No. 6. The owners of Damage Parcels Nos. 8 and 10 on the opposite side of Roy Avenue did not join in the granting of this easement over the 200 foot strip to Fulton Avenue.This claimant, therefore, had no valid easement.

 This claimant is the owner of lot No. 1 which fronts on Fulton Avenue for a distance of 33.10 feet, the rear of which connects with the remainder of his property. It will thus be seen that lot No. 1 is the only means of ingress and egress to the remainder of the lots.

 Unfortunately this claimant, like many others, paid a great deal more for his property than its real value. Nevertheless, he sees no reason why the government should not reimburse him for the full purchase price paid by him. However, this is not the test the commissioners are required to use in awarding damages for the taking of this land.

 The claimant is entitled to only the market value of his land. Beyond the 200 feet which is open on Roy Avenue, there are no streets visible. The property looks like acreage as Roy Avenue and the lots in question are only distinguishable by virtue of their being marked out on a filed map.The commissioners could not take into consideration when fixing values that this road might be opened at some time and become a public thoroughfare. However, they included the value of the land which might have been Roy Avenue in their award.

 The result reached by the Commissioners is just and proper and should not be disturbed.

 The application made for costs and allowances based on Section 16 of the Condemnation Law of the State of New York, Consol.Laws, c. 73, is denied in keeping with the more exhaustive decision on this question contained in this opinion relative to Damage Parcel No. 95, owned by Park Avenue Building Corporation.

 Damage Parcel No. 8 owned by Rina Giacomini and Emma Gregoretti

 This parcel is owned by the claimants, Rina Giacomini and Emma Gregoretti. An award was made by the Commissioners of $1,311. The property, designated as damage parcel No. 8, consists of two lots located at the northwest corner of Hempstead Turnpike and Roy Avenue. These claimants acquired the property in 1927 for $5,440. It was deeded to them under date of November 20, 1933, after the final payment of the purchase price under an installment contract had been made. The testimony with respect to the value of this parcel by the real estate appraisers may be summarized as follows: Claimants' expert ...

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