SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 29, 1968
RAYMOND WEBSTER, RESPONDENT-APPELLANT,
STATE OF NEW YORK, APPELLANT-RESPONDENT
Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J. P.
Cross appeals from a judgment of the Court of Claims awarding the sum of $7,150 to the claimant for direct and consequential damages resulting from a highway appropriation. Both parties question the correctness of the before and after values assigned by the trial court to the subject premises. The court made no express finding as to the highest and best use of the premises which before the taking consisted of about 15 acres of land with some minor improvements (a soft drink stand, fencing and a roadway). It appears that although the trial court rejected the claimant's theory of a residential subdivision, it allowed a potential value for residential uses. Such an allowance implicitly rejected the State's contention that the highest and best use was for pastureland. The case should be remitted to the trial court for a trial de novo on the issue of the highest and best use of the subject premises and an appropriate award based on such evidence as may be produced.
Judgment reversed, on the law and the facts, without costs, and a new trial ordered.
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