There are two valid reasons why the order from which the appeal is taken should be affirmed, in the manner hereinafter indicated:
(1) The title to the lands under water, part of premises for which an award was made to claimant, was involved in very serious doubt at the time of the commencement of the proceeding:
(a) Was the title in the town of Flatlands, the predecessor of the city of New York, as held by Blackmar, J., at a Trial Part and confirmed by Carr, J., in the opinion in Dickens v. City of New York (175 App. Div. 568); as strongly suggested by Willard Bartlett, J., in Denton v. Bennett (102 App. Div. 454); as indicated by a dictum of Fawcett, J., in Matter of City of New York (Gerritsen Basin-Marine Park) (N. Y. L. J. July 16, 1932, p. 199); and as further indicated by chapter 283 of the Laws of 1879, authorizing the town of Flatlands to convey certain lands in Jamaica bay?
(b) Was the title to the lands under water in the upland owner, as it is claimed it is indicated in another and different grant to the town of Jamaica (Rockaway Park Imp. Co. v. City of New York, No. 2, 140 App. Div. 160); a finding (not essential to the determination), per Cropsey, J., in Bergen Beach Land Corp. v. City of N. Y. (113 Misc. 491); dictum of Crane, J., in Matter of *451City of New York (Jamaica Bay) (256 N. Y. 382); admissions in pleadings in People of State of New York v. Williams, Adams (predecessors in title of claimant) and City of New York, Kings County Supreme Court (not reported), the judgment therein entered January 11, 1917, not being a binding adjudication of title; chapter 568 of the Laws of 1909, and chapter 522 of the Laws of 1912, in which the State of New York conveys all its right, title and interest to lands under water in Jamaica bay?
Undoubtedly there must be other documents, maps and statutes which would be of assistance in determining who was vested with title.
An award of $2,569,909 was made for the entire tract. No specific amount was allocated to the lands under water, but the proof indicates that it was undoubtedly a very substantial sum.
Despite the serious doubt involved in the title to the lands under water, and the large amount of money involved, the court’s attention was not called to the cloudy status of the title. Proof of title began with the conveyance to claimant’s predecessors in title in 1893, and included a grant of lands under water by the State to claimant’s predecessors. The representatives of the city offered no proof and made no argument to support the claim of title in the city. None of the Colonial patents, which are the sources of title, were presented for consideration. So far as the record shows, none of the authorities were called to the attention of the court. Despite the fact there is one case squarely holding that title to the lands under water was in the town of Flatlands, the predecessor of the city, and others tending to show the same, and that there is no authority to the contrary, although some tend so to indicate, the city’s representative must have assumed the title was not in the city. The city’s claim to title was worthy of serious consideration, and title of the upland owner should have been disputed, so that the issue might be determined as provided in section 1000 of the Greater New York Charter. In view of the fact that there is a large amount of public money involved, the serious doubt as to this title should be removed. In the interests of substantial justice there should be a new trial.
(2) On February 1, 1926, claimant acquired title for the sum of approximately $1,025,000. The entire tract consisted of about one hundred and three acres of upland and fifty-six acres of land under water. On or about April 7,1926, and May 12,1926, seventy-six acres of upland were sold for $700,000, leaving a cost to claimant for the remaining twenty-seven acres of upland and the adjacent fifty-six acres of land under water of $325,000. On April 10, 1926, the commissioner of docks requested that the property be acquired *452and then represented that the entire tract and other properties were assessed at $278,000. On September 30, 1926, the board of estimate adopted a resolution for condemnation, and on December 9, 1926, an order was made which vested the title in the city of New York. On January 19, 1927, less than one year after claimant had acquired title, proof of title was taken before the corporation counsel. Final decree was signed on December 23, 1932, making an award of of $2,569,909 as against a cost of $325,000.
The testimony of the experts for the claimant as to value was, for the entire tract, $5,386,314 by one, and $5,431,282 by another. Three city experts testified that the value of the entire tract was $810,379. The lands under water measured 2,445,550 square feet. The claimant’s experts testified that the lands under water were valued at $1.35 a square foot, or a total of $3,301,492.50. The city’s experts, on the other hand, testified that the land -under water was practically worthless, and estimated its value at five cents a square foot, or $122,277.50. The difference as to value of the land under water between the claimant’s experts on the one side and the city’s experts on the other was almost $3,200,000. It will be readily understood that anything that had a bearing in this connection would be very important indeed.
In a statement verified by the secretary of the claimant in September, 1929, after proof of title had been taken, but before the hearings as to value had commenced in the condemnation proceedings, the claimant made a protest against the income tax levied by the Federal government on the profit made by it on the sale in 1926 of part of the upland for $700,000. The government claimed a certain amount for additional taxes other than that reported. In this protest the claimant asserts that the net profit on the sale was much less than that charged by the government. The protest recites that in February, 1926, the claimant purchased a tract of land at Bergen Beach with an investment cost of $1,032,447.50; that in April and May of 1926 there were sold parts of the tract, which had been plotted into lots prior to the original purchase, amounting to $700,000. The following is contained in the protest : “ The statement in the report that ‘ the taxpayer is claiming this (the part still held) is more valuable than the property sold ’ — is also erroneous, in that it refers to the present time when the property is under condemnation to the city of New York. At the time of purchase, no such condition existed and the property was purchased with a cloud on the title and was in part from 8 to 15 feet under water, a fact that was used to reduce its value to prospective buyers, on the claim it would cost so much to fill in to be useable, that original value was very much of a question. If subsequent events have *453enhanced the value, it can hardly be taken as effective before such events occurred and which are still dependent on clearing the title, which matter is still at issue in law and if decided against the corporation will make such holdings as they have, which are under water, practically valueless.”
Thus to the Federal government it was urged that the property was purchased with a cloud on the title and was in part from eight to fifteen feet under water, which was used to reduce its value to prospective buyers, on the claim, that, to be usable, it would cost so much to fill in that original value was very much a question. This was quite in accord with the views of the experts for the city, that the land under water was practically valueless. Of course, a statement made by the owner of property before a tax tribunal where he is seeking to reduce his assessment, would not be conclusive against him in a condemnation proceeding. Some allowance must be made for a tendency to assert the minimum of value in a place where it is of interest so to do, and to assert the maximum in another forum where it is helpful so to do. Nevertheless, this letter would undoubtedly have had considerable weight with the trial court, especially where such a tremendous difference in valuation was placed upon the property by the experts. This letter not only tends to discredit the experts for the claimant, but supports the testimony of the experts for the city. If an owner in one place decries the value of his property, he should not find fault if his depreciation of the value there be given consideration in another forum, where he attempts to exaggerate. (Mevius v. Tiffin Products, Inc., No. 2, 198 App. Div. 812; Jordan v. Volkenning, 72 N. Y. 300.) This protest is newly-discovered evidence which was not made available to the city until a long time after the determination and was duly and timely presented to the court.
The assignees of parts of the awards have no greater rights than their assignor.
The order entered April 26, 1935, as resettled by an order entered on or about June 11, 1935, granting the motion to vacate the decree and directing a new trial, should be modified by eliminating all the provisions thereof except the preliminary recitals and except the direction for a new trial, which is to be had pursuant to the provisions of section 1000 of the Greater New York Charter, and as so modified affirmed, with costs to abide the event.
Lazansky, P. J., Young and Hagarty, JJ., concur; Carswell and Johnston, JJ., dissent and vote for reversal, with memorandum.