Opinion
Argued February 26, 1942
Decided April 23, 1942
Appeal from the Supreme Court, Appellate Division, Second Department, LOCKWOOD, J.
Leo B. Mittelman, Charles Greenbaum, A.M. Jacobs, Robert C. Poskanzer, A. Joseph Geist and Charles Lamb for appellant. William C. Chanler, Corporation Counsel ( Reuben Levy and Julius Isaacs of counsel), for respondent.
The assignor of appellant was the owner of land at Far Rockaway, Queens county, N.Y., upon which had been erected an amusement park and a boardwalk. Access to the amusement park was had from the boardwalk and from Rockaway boulevard which paralleled the boardwalk at a distance of six hundred feet. In a condemnation proceeding brought pursuant to Laws of 1918, chapter 506, as amended, the city of New York condemned so much of the tract as constituted the land upon which the boardwalk was erected, and title vested in the city to the portion taken on July 15, 1925. Some three years thereafter, pursuant to provisions contained in the same statute, and prior to the hearing at Special Term, the city erected a new boardwalk in the same location as the former one but at a level three feet higher.
It is urged by the city that no damages may be awarded to the claimant under the facts outlined, since we have here merely a change of street grade. The privately owned boardwalk taken was not a street within the meaning of section 951 of the New York City Charter (L. 1901, ch. 466, as amd.). ( Matter of Jaquino Realty Corp. v. Ormond, 247 N.Y. 528, affg. 217 App. Div. 76.) This was an initial acquisition by condemnation. (See Matter of City of New York [ Putnam Ave. West], [FINCH, J.], 108 Misc Rep. 427, 431.) The true measure of the damages to which claimant was entitled was the market value of the entire tract and improvements before the taking, less the value of the remainder after the taking, including such damages resulting to the residue as were sustained by reason of the use, permanent in character, to which in this instance the portion taken had already been put by the one acquiring it. ( County of Erie v. Fridenberg, 221 N.Y. 389; Town of Fallsburgh v. Silverman, 286 N.Y. 594; South Buffalo Ry. Co. v. Kirkover, 176 N.Y. 301; Matter of Culver Contracting Corp. v. Humphrey, 268 N.Y. 26, 36; Matter of Board of Water Supply of City of New York, 277 N.Y. 452, 456; United States v. Grizzard, 219 U.S. 180; Matter of City of New York [ Northern Blvd.], 281 N.Y. 48, 53.)
The order of the Appellate Division and the decree of the Special Term should be reversed, with costs in all courts to the appellant, and the matter remitted to the Special Term for disposition in accordance with this opinion.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Ordered accordingly.