In re the City of New York

Pinal decree of the Supreme Court, Richmond County, dated December 14, 1962, modified, on the law and the facts, by increasing the amount of the award to appellants for consequential damages from $2,500 to $7,412 and of the total award to them from $5,500 to $10,412. As so modified, decree affirmed insofar as appealed from, with costs to appellants. In our opinion, the amount of the award to appellants for consequential damages in this condemnation proceeding was against the weight of the evidence. Appellants’ proof showed that 5,400 cubic yards of fill were necessary to prevent the flooding of their parcel, of which sum 3,400 cubic yards of fill were in excess of the amount of fill which would have been required to elevate the parcel’s grade in the absence of the flooding. Against this proof, respondent offered only the testimony of a real estate expert who was not shown to have had any knowledge of filling operations, who had not seen the parcel in its flooded condition and who admitted that he was not prepared to state the amount of consequential damages attributable to the flooding. Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.