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ARTHUR C. MILSAP ET AL. v. STATE NEW YORK (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


April 21, 1969

ARTHUR C. MILSAP ET AL., APPELLANTS,
v.
STATE OF NEW YORK, RESPONDENT

Appeal from a judgment in favor of claimants, entered June 9, 1967, upon a decision of the Court of Claims, for the appropriation of a portion of claimants' farm for the construction of New York State Route 12 in the Town of Hammond, St. Lawrence County.

Greenblott, J. Reynolds, J. P., Aulisi, Staley, Jr., Cooke and Greenblott, JJ., concur in memorandum by Greenblott, J.

Author: Greenblott

Appellants' property consisted of 173.61 acres divided by a highway, Cook Road, which crossed the farm north to south. East of Cook Road were 20 acres of pasture and 80 acres of tillable land. West of the road there was a total of 73 acres. The State appropriated 8.201 plus or minus acres of appellants' land. The appropriation runs generally parallel with Cook Road. It severed the farm buildings from the permanent pasture and normal night pasture. Also taken was .644 plus or minus acre with access on the north side of appellants' property. The court's finding as to direct damages is within the range of the testimony and is adequate. However, the finding as to the consequential damages is improper. The appellants' expert found a value before the taking of $68,200 and a value after taking of $48,100 for total damages of $20,100. The State's expert found a value before taking of $49,000 and an after value of $45,000 for total damages of $4,000. The Court of Claims found a before market value of $61,070 and an after value of $53,337 for total damages of $7,733. This decision is patently defective since the after value found is higher than any figure in evidence (see Asken v. State of New York, 25 A.D.2d 922; Lyell Shopping Center v. State of New York, 1 A.D.2d 77). A total award and its various components must be within the range of expert testimony or supported by other evidence (Matter of City of New York [ A. & W. Realty Corp.], 1 N.Y.2d 428) and sufficiently explained by the court (Spyros v. State of New York, 25 A.D.2d 696). New or additional findings must be made with reference to this part of the award. Determination of appeal withheld and case remitted to the Court of Claims for further proceedings not inconsistent with the decision herein. Upon the making of new or additional findings by the Trial Judge, and the filing of the record in this court, the case will be restored to the calendar.

19690421

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