Opinion
March 15, 1950.
Present — Taylor, P.J., Love, Vaughan, Kimball and Piper, JJ.
Judgment modified on the law and facts by reducing the award to the sum of $15,000 and interest and, as modified, affirmed, without costs of this appeal to any party. Certain findings of fact disapproved and reversed and new findings made. Memorandum: Claimants were the owners of lands in the town of Hornellsville, county of Steuben, upon which were buildings, in one of which they conducted a restaurant and tavern under the assumed business name of Beacon Inn. The State appropriated the land and the improvements thereon for flood control purposes on July 23, 1946. The Trial Judge of the Court of Claims has found that, in appropriating the real estate and improvements, the State has appropriated and destroyed the Beacon Inn business. We believe this is error, as is the apparent inclusion in the damages found for claimants, of some sum going to make up the fair market value of the Beacon Inn as a going business. ( Matter of City of Rochester [ Smith St. Bridge], 234 App. Div. 583.) While evidence of profits may be competent to show an adequate or best available use of property, it may not be used to increase the value of the property. ( Banner Milling Co. v. State of New York, 240 N.Y. 533.) The judgment should be modified by reducing the award to the sum of $15,000. All concur. (The judgment appealed from is for claimant on a claim for appropriation of property by the State.)