Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Third DepartmentDec 30, 1946
271 App. Div. 913 (N.Y. App. Div. 1946)

December 30, 1946.

Appeal from Supreme Court, Madison County.

This matter was before the court on a previous occasion. There was an affirmance of the judgment rendered after a trial by the court without a jury. Judgment was entered January 5, 1944. The case is reported in 268 Appellate Division 1017. A reference was granted by Justice PERSONIUS, appointing a referee to ascertain the amount to be paid by each party. The court directed judgment in favor of the plaintiff for the sum of $18,080.27, and interest from January 19, 1946, the date of the report of the referee. The annual rental provided for by the terms of the lease was $1,140.43, in addition to current interest on mortgages, taxes and upkeep. The plaintiff was deprived of the property as a canning factory for the years 1942, 1943, 1944 and 1945, amounting to $4,561.72. Interest on annual rentals for the period during which such rentals remained unpaid to the date of the report $424.27. Difference in the value of the property as it existed on June 1, 1941, and as it existed after the buildings had been demolished and personal property taken away $3,500; amounting in all to $8,485.99. Judgment modified on the law and facts by substituting the sum of $8,485.99 for the sum of $18,080.27, and as so modified affirmed, with costs.

I feel there is ample evidence in support of the referee's findings and report as to the rental value item in plaintiff's damages. Plaintiff's witnesses placed them much higher. The rent reserved in the early part of 1941 for that year is not determinative of the rental value of the canning factory in war years following. Foster, J., taking no part. [See post, p. 1040.]

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