Opinion
November 17, 1967
Appeal by the State from a judgment of the Court of Claims which awarded damages for the appropriation on July 8, 1958, for highway purposes, of 2.679 acres of claimant village's Abendroth Park, which consisted, prior to the appropriation, of 10.725 acres. The State contends (1) that the park was held by the village in its governmental capacity and not in a proprietary capacity and hence that the village is not entitled to compensation for its taking by the State ( People ex rel. Palmer v. Travis, 223 N.Y. 150; Village of Canajoharie v. State of New York, 8 A.D.2d 656); and (2) alternatively, that, if the taking was, in fact, compensable, the award was excessive. There was adequate support in the uncontradicted testimony, as in the other evidence, for the factual conclusion that for many years prior to the appropriation the use of the park had been restricted to village residents. The park officials and employees were authorized, under the village's special Park Commission Act (L. 1925, ch. 290, § 17), to impose and enforce such restrictions, and in general did enforce them. In consequence, the trial court's holding that the park lands were held by the village in its proprietary capacity was warranted. It follows that the taking was compensable. (See Village of Canajoharie v. State of New York, 8 A.D.2d 656, supra; 1951 Atty. Gen. 129.) We turn then to the question of damages. Contrary to the State's contention, there was sufficient evidence, including the proximity of a hospital, to sustain the finding that the highest and best use of one portion of the property was for a medical office building and that of the remainder for residential purposes, and further, to sustain the finding of a reasonable probability of the necessary rezoning; and an adequate discount on account of the uncertainty thereof is reflected in the decision. Inconsistencies in the court's appraisals, however, require adjustment of its evaluations; and we find the before-value to be $139,700, that of the frontage being $51,700 and that of the remainder being $88,000; and find the after-value to be $70,000; the resultant damage being $69,700, of which $67,200 is direct damage and $2,500 is consequential damage. Judgment modified, on the law and the facts, so as to reduce the award to $69,700 and appropriate interest, and, as so modified, affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam. [ 48 Misc.2d 690.]
The appropriation predated section 3 Gen. Mun. of the General Municipal Law (L. 1960, ch. 180), changing the common-law rule so as to allow compensation to a municipality if the land taken is to be used for a substantially different purpose; the section not being retroactive. ( City of Albany v. State of New York, 21 A.D.2d 224, affd. 15 N.Y.2d 1024.)