SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 20, 1968
CARROLL G. HINKLEY, RESPONDENT-APPELLANT,
STATE OF NEW YORK, APPELLANT-RESPONDENT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.
Appeal by the State and cross appeal by the claimant from a judgment of the Court of Claims awarding the sum of $32,422 to the claimant for direct and consequential damages resulting from a highway appropriation. The claimant has abandoned his cross appeal as to the inadequacy of the award and concedes that the direct damage allocated by the court to a designated Parcel No. 54 was excessive by the sum of $3,050 as contended by the State. The State contends firstly that since the claimant was a town assessor, the assessed valuation of his property should have been given considerable, if not conclusive, weight as to the before value of the farm. However, the cases cited by the State are inapplicable to the present situation. The State further contends that the award of the flat sum of $20,000 for consequential damage without an assessment of such damage to the various component factors of this farm renders the award non-reviewable and requests a remittance for specific findings. The State's expert testified to consequential damage of $3,300 and the claimant's expert testified to consequential damage of $42,000. After completing its determination of the direct damage, the court stated: "There was proof offered that prior to the appropriation the farm could and did carry sixty cows and that after the appropriation it could carry 40 cows." Since the highest and best use for the subject premises both before and after the taking was for a dairy farm, the consequential damage awarded would appear to be based upon the reduction in productivity and is supported by the findings of the court.
Judgment modified, on the law and the facts, so as to reduce the award to $29,372, with appropriate interest, and, as so modified, affirmed, without costs.
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