In re the City of New York

Per Curiam.

The order appealed from does not compel the City of New York to surrender a building condemned for its own use; it holds merely that if the city elects to acquire petitioner’s residence as a dwelling for one of the general medical superintendents of the department of hospitals, it cannot avoid paying just compensation for the features of the building which render it useful and suitable for that purpose. Compensation for such features had been disallowed as an element in the award pursuant to the city’s contention that they were unique and added no value to the structure. Now it appears that their existence creates the value which has resulted in the institution of the condemnation proceeding. Under the order appealed from, the city had the option to keep the building by reopening the condemnation proceeding in order that compensation might be awarded to the owner for this element of damage which had been disallowed. Otherwise the former owner of the damage parcel is allowed to remove the building from the land as authorized by section B15-20.0 of the Administrative Code of the City of New York, on payment of $5,000 to the city, representing what has been found to be its salvage value. The city has elected not to reopen, choosing to stand upon the contention that it is entitled to have the benefit of these unique features without paying for them.

The correctness of the statement in the dissenting opinion is undisputed that a different amount of damages cannot be awarded merely because the condemnor intends to put the property to one use rather than to another (Matter of Simmons [Ashokan Reservoir, Sec. No. 6], 130 App. Div. 350 [3d Dept. 1909], affd. 195 N. Y. 573 [1909], affd. sub nom. McGovern v. City of New York, 229 U. S. 363 [1913]), but that does not answer the point that nevertheless “ the commissioners must consider any special intrinsic quality of the property taken, rendering it peculiarly adaptable for the purpose for which it was taken. Thus in Matter of N. Y., L. & W. R. Co. (27 Hun, 116) the bed of an abandoned canal was held to have intrinsic value for railroad purposes, and in Matter of Gilroy (85 Hun, 424) it seems to have been held that land under water possessed intrinsic value for reservoir purposes.” (Matter of New York, Westchester & Boston Ry. Co., 151 App. Div. 50, 56; Matter of Superintendent of Highways, Frankfort, 193 Misc. 617.) This follows the principle declared in Matter of City of New York (198 N. Y. 84, 88): “ By analogy it would seem that when the state compels a man to give up his land for public use, and permits him to recover, not what he thinks it is worth, but only its fair market value, he should at least have the right to prove every element that can fairly enter into the question of market value.” (See Annotation on “ Special Value or adaptability of property for purpose for which it is taken, as an element of, or matter for consideration in fixing, damages in condemnation proceedings ”, 124 A. L. R. 910, 914.)

In the instant case the same Supreme Court Justice who made the award to petitioner for damage parcel No. 91 has, by the order appealed from, held that he erred in omitting to include an allowable element of value. The city objects to his having reopened the condemnation proceeding in order to correct the award. We think that he had power to open it in view of the circumstance that the city’s maps, which were introduced into evidence upon the trial of the condemnation proceeding, showed that the residence upon this parcel was to be razed. It was not until after petitioner had begun this proceeding for permission to remove the building under section B15-20.0 of the Administrative Code, that the city disclosed that it wanted this building to be used as a dwelling. The adaptability for that purpose had previously been disputed by the city’s argument that the building as a residence was not suited to the location and would be removed. When it appeared, contrary to the city’s former contention, that features of this building which were claimed to have been worthless created, in the language of the case above cited, a 11 special intrinsic quality of the property taken, rendering it peculiarly adaptable for the purpose for which it was taken ”, the Trial Justice fairly and properly determined that he should reconsider the elimination of this element of value by reopening the main proceeding.

Although the order appealed from dated June 25, 1951, provides for the vesting of title to the building in petitioner on payment of $5,000 without mentioning the reopening of the main proceeding, the reason for this omission is that a prior order had been entered January 10, 1951, granting leave to the city, if it elected to retain the building, to reopen within twenty days for the purpose of having the value of the improvement reassessed so as to conform more nearly to its actual value. The city having elected not to reopen, and having allowed the twenty-day period to expire, there was no occasion to refer to that aspect in the order appealed from entered June 25, 1951. The time for the city to move to reopen should, however, be extended by the order to be entered on this appeal.

The order amending the final decree insofar as it affected damage parcel No. 91 by vesting title to the building and improvements in Marie Cinelli on payment by her of $5,000, should be modified by extending the time granted to the City of New York until twenty days after service of a copy of the order to be entered hereon with notice of entry, in which to move to reopen the condemnation proceeding for the purpose of having the value of the improvement on this damage parcel reassessed so as to conform to its actual value, if it intends to keep the building, in which event the building shall be retained by the city, and as so modified, the order should be affirmed, with costs to petitioner. The appeal from the order denying petitioner’s motion for reargument should be dismissed. Settle order.