November 24, 1970
Order of the Supreme Court, New York County, entered on January 17, 1968, as eighth separate and partial final decree, unanimously modified on the law and the facts to the extent it makes an award to claimant in the sum of $79,864 for fixtures owned by it in Damage Parcel 134, and the said award for fixtures is reduced by the sum of $18,120 representing the depreciated installation cost of removed fixtures, and the matter is remanded to Special Term for further proceedings, for the sole purpose of a proper award for the removed and relocated fixtures with a discriminating application of the legal principles of damages pertaining to the removed and relocated fixtures, as enunciated in Rose v. State of New York ( 24 N.Y.2d 80) and Cooney Bros. v. State of New York ( 24 N.Y.2d 387). Appellant shall recover of respondent $50 costs and disbursements of this appeal.
Concur — Eager, J.P., McGivern and Macken, JJ. Tilzer, J., concurs in the following memorandum: I concur and agree that the matter should be remanded for further consideration of whether an additional award should be made as to the removed and relocated items. I note however, that the court below did allow compensation for certain items which were not removed while denying compensation as to items which were removed although the items were of similar nature. Although the city has not taken any appeal, the court on remand should be free to consider all items whether or not removed and in determining any award as to removed items should be guided by the principle stated in Rose v. State of New York ( 24 N.Y.2d 80, 86) that an award for fixtures may be given if the items were used "for business purposes and * * * would lose substantial value if removed". I also note that the appellant has received $25,000 from the city to defray moving expenses and any award made should take into consideration such amount.