City of Buffalo v. Michael

Judgment insofar as appealed from unanimously reversed on the law and facts, with costs and matter remitted to Erie Special Term for further proceedings in accordance with the memorandum. Memorandum: In denying the appellant recovery for advertising structures as compensable fixtures the trial court relied on the decision of the Court of Claims in Whitmier & Ferris Co. v. State of New York (21 Misc 2d 70). Thereafter that case was unanimously reversed by this court (Whitmier & Ferris Co. v. State of New York, 12 A D 2d 165) and it was determined that the owners of such fixtures could recover damage therefor upon condemnation of the real property. Thus a new trial is required to give the appellant an opportunity to establish damage, if any, by reason of the appropriation. We do not reach or pass upon the measure of damage to be applied except to say that the award, if any, should not be deducted from or carved out of the award made to the fee owner which has already been paid since the value of the fee was determined without considering the fixtures of the appellant in any fashion. (Appeal by Whitmier & Ferris Co., Inc, from part of a judgment of Erie Special Term awarding $47,250 to defendant Ida Gershuni, in a condemnation proceeding.) Present — Williams, P. J., Bastow, Goldman, Henry and Noonan, JJ.