Lincoln Square Slum Clearance Project, Borough of Manhattan, City of New York, In re

• Decision Date: 21 December 1961
• Citation: 15 A.D.2d 153,222 N.Y.S.2d 786
• Parties: In re LINCOLN SQUARE SLUM CLEARANCE PROJECT, BOROUGH OF MANHATTAN, CITY OF NEW YORK. In the Matter of the Application of The City of New York relative to acquiring title in fee simple absolute to real property required for Lincoln Square Slum Clearance Project within the area bounded by West 60th Street, Amsterdam Avenue, West 66th Street, land of the New York Central Railroad, West 70th Street, Amsterdam Avenue, West 66th Street and Columbus Avenue, excluding all streets, in the Borough of Manhattan, City of New York. The City of New York, Appellant-Respondent, John Frederick Maxwell (D.P. 8) et al., Claimants-Appellants, Charles W. Hand (D.P.s 21, 22, 23) et al., Claimants-Respondents, 167 West 60th Street, Inc. (D.P. 1) et al., Claimants-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 786

222 N.Y.S.2d 786

15 A.D.2d 153

In re LINCOLN SQUARE SLUM CLEARANCE PROJECT, BOROUGH OF MANHATTAN, CITY OF NEW YORK In the Matter of the Application of The City of New York relative to acquiring title in fee simple absolute to real property required for Lincoln Square Slum Clearance Project within the area bounded by West 60th Street, Amsterdam Avenue, West 66th Street, land of the New York Central Railroad, West 70th Street, Amsterdam Avenue, West 66th Street and Columbus Avenue, excluding all streets, in the Borough of Manhattan, City of New York The City of New York, Appellant-Respondent, John Frederick Maxwell (D.P. 8) et al., Claimants-Appellants, Charles W Hand (D.P.s 21, 22, 23) et al., Claimants-Respondents, 167 West 60th Street, Inc. (D.P. 1) et al Claimants-Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 21, 1961.

Irving Genn, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief; Leo A. Larkin, Corp. Counsel, New York City, attorney), for appellant City of New York on residential parcels.

Milton H. Harris and Irving Genn, New York City, of counsel (Seymour B. Quel, New York City, on the brief; Leo A. Larkin, Corp. Counsel, New York City, attorney), for appellant City of New York on commercial parcels.

Bernard L. Bermant, New York City of counsel (Carl J. Moskowitz, New York City, with him on the brief; Skinner, Bermant, Leddy & Raber, New York City, attorneys), for claimants-appellants on Damage Parcels 1, 27, 39, 42, 194, 211, 226, 227, 263, 264, 329, 382, 412, 454, 455, 456, 477.

Anthony Curreri, New York City, of counsel (Eugene J. Schwartz, New York City, attorney), for claimants-appellants on Damage Parcels 5 and 129.

Nathan L. Goldstein, New York City, of counsel (Robert J. Randell, New York City, with him on the brief; Nathan L. and Joseph Z. Goldstein, New York City, attorneys), for claimants-appellants on Damage Parcels 11, 112, 307, 438, 439, 440, 525.

Samuel Goldstein, New York City, of counsel (M. Robert Goldstein and Arthur D. Goldstein, New York City, with him on the brief; Samuel Goldstein & Sons, New York City, attorneys), for claimants-appellants on Damage Parcels 21, 22, 23, 66, 67, 85, 86, 87, 88, 167, 168, 232, 272, 273, 285, 363, 419, 427, 463, 488, 489, 490, 491.

Irving M. Rosen, New York City, of counsel (Alfred D. Jahr, New York City, with him on the brief), for claimants-appellants on Damage Parcels 457, 458, 459, 460, 461.

Sidney Z. Searles, New York City, of counsel (Sidney O. Raphael, New York City, with him on the brief; Raphael, Searles & Vischi, New York City, attorneys), for claimants-appellants on Damage Parcels 68, 69, 72, 149, 523.

Harris L. Present, New York City, of counsel (Arthur J. Galligan, New York City, with him on the brief), for claimant-appellant on Damage Parcel 193.

Loretta A. Conway, New York City, of counsel (Lamb & Lamb, New York City, attorneys), for claimants-appellants on Damage Parcels 110, 322, 381, 391, 442, 464, 496, 514.

Alfred D. Jahr, New York City, for claimants-appellants on Damage Parcels 28, 29, 30, 277, 279, 280, 281, 293, 424.

Morris Klausner, New York City, for claimant-appellant on Damage Parcel 363.

Eugene J. Morris, New York City, of counsel (A. Carleton Dukess, New York City, with him on the brief; Demov & Morris and Lazarus Joseph, New York City, attorneys), for claimants-appellants on Damage Parcels 323, 359, 387, 388, 389, 390.

F. W. H. Adams, New York City, of counsel (Satterlee, Warfield & Stephens, New York City, attorneys) for claimants-respondents on Damage Parcel 431.

Malcolm B. Kahn, New York City, for claimants-respondents on Damage Parcels 106, 107, 109.

Philip A. Paulson, New York City, for claimants-appellants on Damage Parcels 516, 517.

Monroe Goldwater, New York City, of counsel (Leon Liner, New York City, with him on the brief; Goldwater & Flynn, New York City, attorneys), for claimant-respondent on Damage Parcel 267.

John P. McGrath, New York City, of counsel (Jeremiah M. Evarts, Frederick R. Adler, New York City, and Jacob W. Heller, Forest Hills, with him on the brief; Hodges, Reavis, McGrath & Downey, New York City, attorneys), for claimant-respondent on Damage Parcel 462.

Herman G. Blumenthal, New York City, for claimant-respondent on Damage Parcel 176.

Leo Klauber, New York City, for claimants-respondents on Damage Parcels 519, 520.

Mortimer Jay Goodstein, New York City, for claimants-respondents on Damage Parcel 518.

Michael C. Gray, New York City, for claimant-respondent on Damage Parcels 478, 479, 487.

Bernard L. Bermant, New York City, of counsel (Skinner, Bermant, Leddy & Raber, New York City, attorneys), for claimants-appellants, John Frederick Maxwell (D.P. 8) and others, and claimants-respondents-appellants, 167 West 60th Street, (D.P. 1), National Transp. Co., Inc. (D.P. 477), and others on review of order denying motion concerning statutory interest.

Milton H. Harris, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief; Leo A. Larkin, Corp. Counsel, New York City, attorney), for City of New York on review of order denying motion concerning statutory interest.

Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE and STEUER, JJ.

STEUER, Justice.

By this proceeding the City of New York has condemned all the property consisting of 13 square blocks of somewhat irregular shape but roughly between Amsterdam and Columbus Avenues and 60th and 70th Streets. Over four hundred parcels are involved. The court entered several decrees from time to time as expediency and proper practice dictated. These appeals are from portions of the Fifth and Sixth Decrees and involve some 71 parcels. From some of the awards for these the City has appealed, from others the claimant, but in the majority of instances both sides have appealed. In all instances the appeal and cross appeal, if any, are based on the quantum of the award. The awards cover both residential and commercial properties. These will be considered separately.

The entire proceeding included properties of practically every kind and classification to be found within urban limits. It is the unanimous opinion of this Bench that the dispositions made by Mr. Justice Hecht at Special Term, some under very trying conditions, represent a very high exercise of judicial functions. As will be seen, in only a relatively small percentage of the total dispositions did the parties have occasion to appeal. In the overwhelming majority of instances where appeal was resorted to, as indicated more particularly below, we find that the grounds for appeal lacked persuasion and discussion is warranted only for the reasons hereinafter stated.

We will first consider the residential properties in the Fifth Decree.

We find no error in the determinations from which the appeals and cross appeals have been taken in regard to Damage Parcels 1, 39, 42, 194, 263-264, 5, 11, 419, 457-461, 68-69, 72, 149, 381, 391 and 28-30, and the decree in so far as these parcels are concerned is affirmed without costs. We find no error in the determinations in regard to the following parcels from which the claimants have appealed: 112, 307, 438-440, and 442, and the decree in so far as these parcels are concerned is affirmed with costs to the City against the respective claimants. We find no error in the determinations in regard to the following parcels from which the City alone had appealed: 293, 363, 387-390, 431, 21-23, 66, 67 and 427, and the decree in so far as these parcels are concerned is affirmed with costs to the respective respondents-claimants against the City.

In regard to these parcels the briefs of the respective appellants iterate certain arguments which we believe that either no application to the facts or represent misconceptions of the law. We have deemed it advisable in the latter case to point out the respects in which we find the contentions untenable and ineffective to disturb the awards made by Special Term.

The constitutional mandate in regard to the exercise of the right of eminent domain is that property shall not be taken without 'just compensation'. It further provides that the compensation to be made shall be ascertained by the court (N.Y.Const. art. I, § 7(a) and (b)). It follows that while the object of the court is to arrive at just compensation, the method by which this is to be accomplished is by means of judicial proceeding. The court does not therefore make an independent appraisal but must rely on the evidence presented to it (People ex rel. Uvalde Asphalt Paving Co. v. Seaman, 217 N.Y. 70, 111 N.E. 482). This does not mean that it is concluded by the testimony of the respective experts as to their opinions of value or their estimates as to the various items which constitute the factors from which over-all value is calculated or determined (Commercial Casualty Ins. Co. v. Roman, 269 N.Y. 451, 200 N.E. 319). It is almost invariably the case that the value, and hence what compensation is found to be just, is not the figure claimed by either the claimant or the City and advanced by their respective experts. The court is not bound to choose between these figures and select one of them based on an evaluation of the capabilities or the character of the respective experts. The same applies to the underlying or breakdown figures of the estimates when such figure is the result of opinion. Among such figures is the capitalization rate to be used when capitalization of income is the appraisal method used. It is now generally conceded that in properties owned for income purposes this method, when due consideration is given to other factors that may be present, is the preferable one for calculating value. It involves capitalizing the net income that the property can fairly be expected to produce, and the rate of capitalization is the percentage of return on his investment that a willing buyer would expect from that property. As this must...