The opinion of the court was delivered by: KNOX
In the above entitled condemnation proceedings, the Government and the respective owners of Damage Parcels 1, 11, 12, 14, 20 and 21, are content with the awards made by the Commissioners of Appraisal, and such awards, therefore, will be confirmed.
Both the government and the former owners of Damage Parcels 5, 17 and 19 have moved to set aside the awards of the Commissioners. The United States asserts that the awards are excessive. The owners claim that they are inadequate.
As respects Damage Parcels 6, 8, 15 and 16, the government moves to confirm the awards, and the owners ask that they be set aside. As to Parcels 4, 7 and 10, the government moves to set them aside. The owners ask that they be upheld.
In addition to the motions having to do with the fee awards, certain tenants who occupied portions of some of the Damage Parcels have moved to set aside the Report of the Commissioners insofar as it denied compensation to such tenants for trade fixtures which the claimants had installed in their leased premises.
At the outset of this decision, it is pertinent to observe that the membership of the Board of Appraisal was entirely competent, and this is conceded by most of the claimants in this proceedings. The Chairman of the Board, Henry Lichtig, is a lawyer of mature years and in that capacity, as well as in his personal interest, has had wide experience concerning real estate transactions. Paul E. Lord is an attorney who, for years, has represented clients who are constantly engaged in the purchase and sale of business properties of major importance. He also is the attorney for trustees and investors who regularly engage in making mortgage loans secured by real property.
Peyton K. Royal, the third commissioner, is Comptroller of the Union Dime Savings Bank, an institution that annually makes mortgage loans of millions upon millions of dollars. Its outstanding loans at the present time approximate 100 million dollars.
These recitals are made in order to indicate that damage awards made by a Board of Appraisal, comprised of men with such backgrounds, are not lightly to be set aside or modified. These men viewed the buildings that formerly occupied the various damage parcels. They heard the factual and opinion evidence that was given by the experts who testified for the several parties. They also considered the various exhibits. When all this was done, they conferred and consulted among themselves as to the awards that should be made. They reached unanimous conclusions and, in my judgment, the results of their factual conclusions should not be disturbed by a judicial inmate of a courthouse cloister.
The government suggests that some of the awards be recommitted to the Commissioners for further consideration and deliberation. This procedure, I apprehend, would be a futility. At the time of argument upon the motions now before me, I inquired if any of the parties wished to produce further testimony. None of them expressed a desire to do so.
So far as concerns a suggestion that the disputed awards by sent to a new Board of Appraisal, I am of the belief that this would be an idle and expensive gesture. The buildings and improvements of the condemned property have now been demolished, and they were of substantial value. A new Board of Appraisal, in my opinion, would be utterly unable to come to fully informed decisions as to what awards should be granted for improvements that have now ceased to exist.
In addition to the above considerations, it is to be borne in mind that all the claimants, with two or three exceptions, concede that the Commissioners in reaching their decision as to the valuations of the several damage parcels, adhered strictly to all applicable rules of law, and they had no purpose to be otherwise than fair and just.
From what has been said, it would appear that this is an occasion on which this court should follow the pronouncements of the appellate tribunal of this judicial circuit as they are set forth in United States v. City of New York (Eastern District Terminal), 2 Cir., 165 F.2d 526, 1 A.L.R.2d 870, and United States v. Village of Highland Falls, 2 Cir., 154 F.2d 224. In the first mentioned case (165 F.2d 529), Judge Learned Hand said: 'Upon this appeal we must accept without inquiry the appraisal of the Commissioners, so far as concerns the sufficiency of the evidence to support the awards.' And, more recently, the Appellate Division of the New York Supreme Court, Second Department, in the case of Matter of the City of New York (64th Avenue, 218th Street, Borough of Queens), 279 App.Div. 600, 107 N.Y.S.2d 463, 464, it was stated: 'Appellants have not shown that the fixing of damage for the taking of their parcels was based upon an erroneous theory of law, or that there were erroneous rulings in the admission or exclusion of evidence, or that the court at Special Term failed to give to conflicting evidence the relative weight which it should have, or that the awards are clearly wrong or such as to shock the sense of justice of the court. In the absence of any such showing an appellate court may not substitute its judgment of damage for that of Special Term.'
Authoritative declarations such as these persuade me that, in this proceeding, I should approve the compensation awards of the Commissioners so far as the element of quantum is concerned, and this will be done.
The tenants' fixture claims have to do with Damage ...