I dissent and vote to affirm the judgment.
I think the items referred to by Presiding Justice Hill as having been erroneously considered were competent within the authority of Banner Milling Co. v. State of New York (240 N. Y. 533), cited by him. The plant was uncompleted. Findings 25 and 26 show not only what had been expended toward the plant, but the further sums which it would have been necessary to expend before the plant was ready for operation. Obviously the property was not as valuable with an uncompleted plant as it would have been with a completed and operating plant. It was proper to know how much it would cost to complete the project-, in order to know what the property was worth. I do not think the findings or the opinion indicate that damages were awarded for the uncompleted contracts and for the further amount of expenditure which would have been required to complete and equip the plant. The portion of the opinion of the court referred to indicates only that these items were considered by the court upon the question of the value of the property. This is further indicated by the statement of the court immediately following which is that “ the value of the land must be *661considered.” That was what was being taken, the land or the real property. Its value was to be ascertained by considering its state of improvement with all the appropriate elements. If the record indicated that these items were awarded by the court as elements of damage, then properly the judgment should be reversed, but I do not think that conclusion is to be spelled out from the opinion or the decision of the court below.
In Adamo v. State of New York (235 App. Div. 12) this court reversed the Court of Claims and granted a new trial because in that case the Court of Claims had made a finding that claimant’s property had been greatly damaged by a change of grade. Damages for change of grade were neither proper as an element of damage nor was the evidence competent as supporting claimant’s claim in that case. The findings there indicated that the court had awarded damages for change of grade. Here, it seems to me the record shows only that the court has considered evidence which was proper as bearing upon the value of the property taken.
Judgment reversed, on the law and facts, and new trial granted, with costs to the defendant to abide the event.
The court reverses findings of fact numbered 25, 26 and 29 of the decision, and such findings of fact as are contained in the conclusions of law; also finding number 26 contained in claimants’ proposed findings of fact.