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UNITED STATES v. FISK BLDG.

April 8, 1954

UNITED STATES of America, Petitioner-Plaintiff,
v.
Improved premises designated as the FISK BUILDING and known as 250 WEST 57th STREET, BOROUGH OF MANHATTAN, CITY, COUNTY AND STATE OF NEW YORK, and Arthur Felber, et al., Defendants



The opinion of the court was delivered by: KNOX

The above entitled proceeding was instituted by the filing of a complaint of condemnation on January 28, 1951. Its purpose was to bring about the condemnation for public use of the third and fourth floors of the 'Fisk Building', located at 250 West 57th Street, in the Borough of Manhattan, New York City. The space sought to be obtained comprised 34,718 square feet.

The United States sought the exclusive use and occupancy of such space for a period beginning July 15, 1951, and ending July 14, 1952, with the right to extend such use and occupancy for annual periods to July 1958. As of the present time the Government has exercised its right to such use and occupancy to July 1954.

 This Court, on June 28, 1951, entered an order whereby the Government was granted the right to the exclusive use and occupancy of the space as of July 15, 1951. However, some of the then tenants of the premises, by arrangements made with the appropriate authority, did not remove from the building until various dates thereafter. At the time this proceeding was begun, the said two floors of the building were occupied by some fifty tenants who had been in possession for various periods preceding the commencement of this suit. With a few exceptions, the leases of the respective tenants had expired, but such tenants continued to occupy the premises as statutory tenants under the provisions of the Commercial Rent Control Law of the State of New York. Laws of 1945, Ch. 3, as amended, Title 23, McKinney's Unconsolidated Laws, ยง 8521, et seq.

 As a result of the order of condemnation, it became necessary for the several tenants to remove from the premises and, if they so wished, to locate their businesses at other locations.

 At the outset of this proceeding a considerable number of such tenants entered appearances herein and filed claims for compensation for damages allegedly sustained. Thereafter, numerous such tenants withdrew their appearances and, by stipulation, waived their respective claims for compensation. The larger number of tenants, however, failed to appear in the suit, and made no claim for compensation.

 On February 5, 1954, the Government served a notice of hearing to be held before me on February 19, 1954 upon pending compensation claims. Service was by mail, and such notice was directed to all defendants who had previously appeared personally, or by attorney, as well as to all defendants who had failed to appear.

 Upon the return date of the notice, all defendants, with the exception of those about to be listed, defaulted in appearing and submitted no proof of their claims for compensation. The following tenants did appear:

 Isaac Karp, d/b/a Tri-Dental Laboratory and Dominick Corelli, who appeared by Keesing & Keesing, Esqs., attorneys, 250 West 57th Street, New York City; Manhattan Mutual Automobile Casualty Co., Inc., who appeared by Alexander Kosloff, Esq., attorney, 1775 Broadway, New York; Vacationland Travel Service, Inc., appearing by Aaron H. Walowit, Esq., attorney, 37-53 82nd Street, Jackson Heights, New York.

 The nature and character of the claims thus submitted can generally be classified as costs and expenses alleged to have been incurred by such tenants as incidentals of their being required to remove from the condemned premises, and to equip new quarters or space for the conduct of their future business activities. Such moving expenses fall into the following categories:

 (a) Carting and moving expenses; (b) lettering on doors and windows of new space into which the tenants moved; (c) cost of partitions and other changes or improvements in the premises to which they removed.

 One of the tenants, Dominick Corelli, contended that following the institution of this action and the order of possession that followed he elected not to remove his barber shop and beauty parlor equipment. He now argues that it had no removal value inasmuch as it was fitted for the use of only direct electric current. The proof indicated that he shortly left the State of New York and went out of business; that he had made no effort to remove or salvage his equipment despite a subsequent notice from the Department of State advising him of the necessity of removal or of otherwise disposing of this material.

 The leases under which these various tenants first went into possession of portions of the condemned space and under which they subsequently occupied the space as statutory tenants were on the standard from of office lease commonly used in this City and each of them contained the typical 'alteration' and 'eminent domain' clauses found in such standard from. These clauses are as follows:

 
'4. Tenant shall make no alterations, decorations, additions or improvements in or to demised premises without Landlord's prior written consent, and then only by contractors or mechanics approved by Landlord. All such work shall be done at such times and in such manner as Landlord may from time to time designate. All alterations, additions or improvements upon demised premises, made by either party, including all panelling, decorations, partitions, railings, mezzanine floors, galleries and the like, shall, unless Landlord elect otherwise (which election shall be made by giving a notice pursuant to the provisions of Article 29 not less than 3 days prior to the expiration or other termination of this lease or any renewal or extension thereof), become the property of the Landlord, and shall remain upon, and be surrendered with said premises, as a part thereof, at the end of the term thereof. Any mechanic's lien filed against the demised premises, or the building of which the same form a part, for work claimed to have been done for, or materials claimed to have been furnished to, Tenant, shall be discharged by Tenant within 10 days thereafter at Tenant's expense, by filing of the bond required by law.
 
'12. If the whole or any part of demised premises shall be taken or condemned by any competent authority for any public or quasi public use or purpose, then, and in that event, the term of this lease shall cease and terminate from the date when the possession of the part so taken shall be required for such use or purpose, and without ...

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