Citation Numbers: 50 A.D.2d 1068
Filed Date: 12/12/1975
Status: Precedential
Modified Date: 1/12/2022
— Judgment unanimously modified, on the law and facts, in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: While we are reluctant to disturb awards in condemnation made by an able and experienced Trial Judge who has seen and heard the witnesses and viewed the properties, we believe that it is our duty to do so if the finding of value made at Special Term "is based upon erroneous theory of law or erroneous ruling in the admission or exclusion of evidence, or * * * it appears that the court at Special Term has failed to give to conflicting evidence the relative weight which it should have and thus has arrived at a value which is excessive or inadequate” (Matter of City of New York [Newtown Cr.] 284 NY 493, 497). We think that in the present case the award is inadequate. The court erroneously excluded from the evidence appellant’s recent sale to respondent of nearby property (Sale No. 2) (Matter of Municipal Housing Auth. of City of Utica [Rosenbloom] 271 App Div 184). The court also failed to acknowledge and make allowance for the fact that respondent’s Sale No. 1 was an estate sale and, although not without probative force as a matter of law, should therefore not have been entitled to the weight usually accorded recent sales of subject property in determining market value. After a review of the evidence and adjustment for these errors, we feel that the award should be increased to $28,678, with interest from January 23, 1973. The power of the Appellate Division to