Opinion
March 28, 1966
MEMORANDUM BY THE COURT. In this appropriation case involving premises improved by a ranch-type dwelling which was neither unique nor a specialty, the evidence necessarily relied upon by the trial court was adduced from claimants' expert witness who testified as to the value of the land and evaluated the building prior to the appropriation solely on the basis of reproduction cost less depreciation. The State's expert used in part the same erroneous theory, as well as the proper market approach. In similar circumstances we have held that fairness required a new trial. ( Guthmuller v. State of New York, 23 A.D.2d 597; Levine v. State of New York, 24 A.D.2d 524; Svoboda v. State of New York, 24 A.D.2d 915.) Judgment reversed, on the law and the facts and in the interest of justice, without costs, and a new trial ordered. Gibson, P.J., Herlihy, Taylor, Aulisi and Hamm, JJ., concur.