SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
April 3, 1969
CITY OF BUFFALO, RESPONDENT,
JOSEPH DAVIS, INC., ET AL., APPELLANTS
Appeals from final decree of Erie Special Term, in condemnation proceeding.
Goldman, P. J., Witmer, Gabrielli, Moule and Henry, JJ.
Final decree unanimously modified on the law and the facts in accordance with memorandum and as so modified, affirmed, with costs to appellant Joseph Davis, Inc., Memorandum: These are appeals by the owner and tenant from a decree directing condemnation. We affirm the award made to the tenant for the value of certain trade fixtures which it had the right to remove and had so intended upon termination of the lease and for which compensation was properly fixed. (City of Buffalo v. Michael, 16 N.Y.2d 88). Since other fixtures were not intended to be removed, their value was properly included in the award to the owner. The tenant's leasehold was terminated by operation of the lease and no additional compensation therefor was justified. In arriving at a value for the building, it was proper to use the income capitalization method (Marjal Realty Corp. v. State of New York, 23 A.D.2d 941) but we are unable to agree with the value arrived at by the court wherein reliance was given to the testimony of the city's appraiser who considered only the actual rental without giving consideration to the property's depressed rental value caused by the impending condemnation announced several years earlier by the plaintiff. (See Matter of City of New York [Lincoln Sq. Slum Clearance Project ], 15 A.D.2d 153, affd. 16 N.Y.2d 497; City of Buffalo v. Irish Paper Co, 31 A.D.2d 470.) The owner's award should be modified by increasing it to $146,300, a value which is based on a proper income capitalization method and which finds support in the record.
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