Niagara Mohawk Power Corp. v. Gonciarz

Judgment insofar as appealed from reversed on the law and facts and matter remitted to new commissioners for a new hearing and determination, with costs to appellants, unless the respondent stipulates to increase the award to $21,253, with interest, in which event the judgment is modified accordingly, and as modified is affirmed, without costs of this appeal to any party. Memorandum: The land taken in this condemnation consisted of 11.34 acres of the best tillable land or approximately 25% of all the tillable acreage of the farm. The testimony discloses that the income for the year prior to the taking was $15,000. It is indeed questionable whether the 34 acres remaining could be farmed so as to produce any profit after diminishing the tillable acres by one fourth. The award is so inadequate as to shock the conscience of this court and results in large part from the commissioners’ finding of $2,500 as consequential damages to the remainder of the farm. The inadequacy of this sum demonstrates that the commissioners misconceived the scope of the consequential damages. Giving adequate weight to the loss incurred by the consequential damages to the remainder, we find that the award should be increased to the sum of $21,253 with interest. Unless the respondent will agree to increase the award to this amount, the matter cannot be disposed of without a new hearing which, in the light of this record, should be had before new commissioners. All concur, except Williams, P. J, who dissents and votes for affirmance. (Appeal from part of judgment of Herkimer Supreme Court for defendants in a condemnation proceeding.) Present — Williams, P. J., Bastow, Goldman, Halpern and McClusky, JJ.