Holmes v. State of New York

• Decision Date: 30 December 1952
• Citation: 204 Misc. 9
• Parties: Mabel L. Holmes, as Executrix of Theodore L. Holmes, Deceased, et al., Claimants,<BR>v.<BR>State of New York, Defendant. (Claim No. 29801.)
• Court: New York Court of Claims

204 Misc. 9

Mabel L. Holmes, as Executrix of Theodore L. Holmes, Deceased, et al., Claimants,

v.State of New York, Defendant. (Claim No. 29801.)

December 30, 1952.

Lewis B. Parmerton for claimants.

Nathaniel L. Goldstein, Attorney-General (Douglas S. Rider of counsel), for defendant.

LAMBIASE, J.

This claim was filed to recover damages allegedly resulting from the appropriation, for the purposes of a grade crossing elimination project, of a perpetual easement in .004 of an acre of land belonging to claimants in the village of Owego, county of Tioga, New York.

It was tried before us and by our decision filed in the office of the clerk of this court we found that claimants had been damaged in the sum of $100 by reason of the appropriation, and we found further that claimants were entitled to no other damages. Judgment was duly entered in the office of the clerk of this court in accordance with said decision on the 14th day of September, 1951.

On appeal to the Appellate Division of the Supreme Court, Third Department, that court, having handed down its decision on March 12, 1952, and its amended decision on March 20, 1952 (279 App. Div. 489, 958) by an order entered in the clerk's office thereof on March 23, 1952, provided as follows: "ORDERED AND ADJUDGED, that the judgment so appealed from be and the same hereby is unanimously reversed on the law and facts, with costs to the appellants, and a new trial directed on the issue of whether other and suitable means of ingress and egress to appellants' feed mill existed after the closing of the westerly end of Erie Street extension, and whether claimants are entitled to consequential damages in connection therewith;" and further "ORDERED, that the 26th, 28th, 30th and 31st Findings of Fact, and the 2nd Conclusion of Law in the decision of the Court of Claims be reversed, and that Finding of Fact No. 24 in the decision of the Court of Claims be modified by eliminating the last sentence thereof." Judgment was entered in the Court of Claims carrying out the direction of the Appellate Division.

Thereafter and on May 1, 1952, and after the afore-mentioned judgment carrying out the direction of the Appellate Division had been entered, Theodore L. Holmes, one of the claimants, died. The retrial of "the issue of whether other and suitable means of ingress and egress to appellants' feed mill existed after the closing of the westerly end of Erie Street extension, and whether claimants are entitled to consequential damages in connection therewith" was duly brought on before us on June 12, 1952, at which time Mabel L. Holmes, executrix under the last will and testament of Theodore L. Holmes, was duly substituted in the place and stead of the deceased claimant, Theodore L. Holmes.

Upon the retrial before us, it was duly stipulated that:

A. "The Appellate Division, Third Department, having held that the finding of this court made in its decision dated August 30th, 1951, to the effect that claimants were not cut off from all other suitable means of ingress and egress by the closing of Erie Street Extension, is against the weight of evidence, and having reversed the judgment entered upon said decision and having ordered a new trial on the issue of whether other and suitable means of ingress and egress to appellants' feed mill existed after the closing of the westerly end of Erie Street Extension and whether claimants are entitled to consequential damages by reason thereof, it is stipulated that the purpose of the taking of further testimony today is solely in connection with said issue, as directed by the Appellate Division, and none other." (Retrial S. M. 2.)

B. "the record of the previous trial and the exhibits, and all the exhibits, introduced into evidence and forming a part thereof may be used by the Court in deciding the foregoing issue."

"And shall be considered with the same force and effect as if separately introduced." "And * * * that this record shall be considered only on the issue on which the new trial has been directed by the Appellate Division." (Retrial S. M. 3.)

C. "the original exhibits having been lost, that copies thereof may be submitted to the Court and used by the Court with the same force and effect as if the original exhibits had been submitted to the said Court." (Retrial, S. M. 3.)

D. "that Mabel L. Holmes, as executrix under the last will and testament of Theodore L. Holmes, be and she is hereby substituted as one of the claimants herein in the place of Theodore L. Holmes, and that the title of the action be amended accordingly." (Retrial S. M. 37.)

We have before us now for consideration upon the issue returned to us by the Appellate Division for retrial a record which consists of the record on the first trial, insofar as it affects the issue before us (Stipulation "B" supra), which record was before the Appellate Division on the appeal, and also the record on the retrial of said issue. To aid us also in arriving at our conclusion herein, accompanied by claimants' attorney and by a representative of the State of New York, we again viewed, following the retrial, the appropriated premises and the premises of which the appropriated land prior to the appropriation was a part. We have concluded from all of the foregoing that the evidence before us on the issue of "whether other and suitable means of ingress and egress to appellants' feed mill existed after the closing of the westerly end of Erie Street extension, and whether claimants are entitled to consequential damages in connection therewith" is substantially the same as it was on the previous trial.

In its opinion (FOSTER, P. J., concurred in by a unanimous court, p. 492), the conclusion is reached by the Appellate Division that our finding "to the effect that claimants were not cut off from all other suitable means of ingress and egress is against the weight of evidence." And while we are aware that it is the order of the Appellate Division reversing the judgment upon questions of fact as well as upon questions of law, and setting forth the findings of fact and the conclusion of law reversed, and the finding of fact modified, and directing the new trial upon the issue therein specifically set forth which has determined the scope of such new trial, and although in accordance with said order the retrial of the issue returned to us was presented to and considered by us de novo as though it had never been heard before, we have borne in mind the aforesaid conclusion of the Appellate Division as we have borne in mind all other competent considerations with reference to and bearing upon said issue; and we have also borne in mind the stipulations of the parties hereinbefore set forth in arriving at our determination herein. However, in formulating our findings of fact and conclusions of law hereinafter specifically set forth, we have been controlled by our own final convictions on the evidence with reference thereto.

Upon the retrial we reserved decision on a motion made by claimant (S. M. 32) to strike out certain testimony on the ground that it was too remote although we did indicate at the time that we were of the opinion that the motion should be granted. Therefore, as indicated upon the retrial, said motion should be and hereby is granted, and the testimony referred to therein is stricken out.

We set forth our decision upon the issue returned to us in separately numbered findings of fact and conclusions of law italicized for the purpose of distinguishing them, and we have integrated the said italicized findings of fact and conclusions of law with the other findings of fact and conclusions of law contained in our decision dated August 30, 1951, which were not reversed or modified, or concerning the subject matter of which the Appellate Division made no new findings of fact, our decision herein being in compliance with the order of reversal and with the stipulations of the parties.

Findings of Fact

1. That the claim of the claimants has been duly filed, has not been assigned, and has not been submitted to any other officer or tribunal for audit or determination.

2. That the claimants were at the time of the appropriation copartners doing business under the firm name and style of Holmes and Relyea, operating a feed mill, manufacturing feed and selling feed, seed, fertilizer and farm supplies at wholesale and retail.

3. That on June 25, 1947, pursuant to chapter 678 of the Laws of 1928 and acts amendatory thereof and supplemental thereto, the State of New York in connection with grade crossing elimination of Erie Railroad (Susquehanna Division) with Owego-Candor Part I S. H. No. 5420 (North Avenue), Paige Street, McMaster Street, East Temple Street and Greene Street in the village of Owego, New York, appropriated a perpetual easement for the purpose of constructing, reconstructing and maintaining thereon slopes, in and to all that piece or parcel of land hereinafter designated as parcel No. 23, situated in the village of Owego, County of Tioga, State of New York, described as follows:

"Parcel No. 23

"Beginning at a point in the southerly line of East Avenue, at its intersection with the dividing line between lands of Holmes and Watkins (reputed owners) on the east and lands of E. H. Miller Lumber Company, Inc. (reputed owner) on the west;

"(1) Thence easterly along said southerly line of East Avenue, a distance of fifty (50) feet to a point;

"(2) Thence westerly through lands of Holmes and Watkins (reputed owners) a distance of forty-eight (48) feet more or less to a point in the aforementioned dividing line between lands of Holmes and Watkins (reputed Owners) on the east and lands of E. H. Miller Lumber Company, Inc., (reputed owner) on the west;

"(3) And thence northerly along said dividing line, a distance of seven (7) feet to the point or place of beginning;

"Containing four thousandths (0.004) of an acre more or less.

"All bearings referred to magnetic north as magnetic needle pointed in 1933 A.D.

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