In re the Incorporated Village of Garden City

The fields to which this parcel is to be added are now public parking fields. Although the majority of the users of such parking fields may now be patients in the adjoining medical center and although some benefit does accrue to its owners and tenants, nevertheless, such benefit is incidental to the primary public use. A former private use of a parcel of land creates no presumption that its taking is not for a public purpose. Beldock, Acting P. J., Ughetta, Christ and Pette, JJ., concur; Brennan, J., dissents and votes to reverse the order and to deny the application, with the following memorandum: In my opinion, before an order of condemnation is made the owner here is entitled to a trial of the factual issue raised by her, namely: whether her property is sought to be taken primarily for a public or private use (Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; City of Utica v. Damiano, 22 Misc 2d 804; Saso v. State of New York, 20 Misc 2d 826).