(dissenting). This case is here on review for the third time, and the main ground urged on each of those occasions has been the shocking excessiveness of the award. On the last appeal to this court, the writer felt compelled to dissent and voted to reverse (242 App. Div. 864,868). In addition to the extravagance of the award for the land, that dissenting opinion discusses a charge of $16,437.64 for unlawful dredging on the State’s land, and another item of $12,534.73 for expense of forming a claimant corporation. It seems that these two items were abandoned and not allowed on the last trial. In other particulars, no reason appears for altering the views expressed in that opinion, or the cases which document that dissent.
Reference is made to that opinion for the evidence, the reasoning, the statutes, and cases which condemn the allowance of $5,000 for a title search. On the reversal of this court (268 N. Y. 192), the Court of Appeals discussed only the question of the basic reversible error on the larger question of land value.
The lands in question consisted of 110 acres of rock land and 54 acres of marsh. They were bought by the claimant owner in 1909 for $18,000, were “ idle, unimproved and unprofitable, ’ ’ and they so remained until taken by the State. They were assessed at $14,540, and from 1923 to 1928 different prices for sale purposes were stated by the owner ranging progressively from $30,000 to $150,000. There is no proof in the record that the plaintiff could have sold these lands for a sum in excess of any of these prices. On the *87former trials the Court of Claims gave a value to these lands of more than $1,000,000.
On the last trial a divided Court of Claims followed the conclusions of the official referee in his report, and gave as the value of the lands in question $880,000, and $8,000 per acre for the uplands.
The value of the improvements on these lands is not in dispute, and it amounts to $445,709.62. An allowance was made by the Court of Claims of $5,000 for making a title search; and the total award was $1,333,209.62.
The official referee rejected the values as stated by experts on both sides. He seems to have declined to consider the cost of the site in 1909 as evidence, because there was no proof of value or market for trap rock in 1909, and also because the property was then “ an idle, unimproved and unprofitable piece of land.” Proving that streets, State roads, and construction of all kinds were being done with the use of concrete and coarse aggregate in New York and elsewhere in 1909, would be evidence only of that which is universally known and evident. And the view that the property was idle and unprofitable in 1909 coincides exactly with its condition in 1928. It had produced no crushed stone nor any income at either time. For similar reasons the assessment of the land at $14,540 was regarded as “ valueless ” and out of line with the other evidence. But it can be argued easily that the assessment was in harmony with the price paid by the owner of an idle and unprofitable holding, and in some degree in harmony with the owner’s appraisement for sale at $30,000, and later at $50,000. The substantial disregard of this factual evidence doubtless contributed to an erroneous result.
In like manner, the assumption in the report that there was no evidence of value of other comparable quarries within a reasonable distance, does not indicate a full appreciation of the State’s evidence. It appears from claimants’ own witnesses that there were several other quarries in the same general section, and within easy access of the metropolitan market. And some of these were much greater in acreage and extent of stone, with plants of much larger capacity, and were owned by companies which had been doing an extensive business for many years. These other properties were carried on the books of their owners or sold at prices ranging from $150 to $1,000 an acre. And the observation that some of them had not been opened would not differentiate them from the quarry under consideration, as the claimants had neither opened their quarry nor done any business.
*88The report notes that the conclusions of the experts cannot be accepted, biit that it is necessary “ to look at the other evidence in the case as a basis for the award,” which shows that the Pierremont site is “ available and valuable.” It is observed that plans had been prepared for a development of the quarry, and apparently these plans had been nearly half completed. But no other proof is particularized, and I am unable to find any in the record, which would give the slightest indication that the 110 acres of rock land had a value of $880,000, or $8,000 an acre, or even an approximation of such a value, apart from the deductions to be drawn from the hypothetical question.
The report summarized the evidence in the face of which the opinions of value were given by the claimants7 experts. This was that the metropolitan district provided 'a market of 10,800,000 cubic yards of coarse aggregate, of which nearly half was crushed stone; that if allowed to complete their plant, the claimants would have been able to deliver 750,000 cubic yards of their product per year on scows at their own property (although claimants7 uplands were not adjacent to deep water) at a cost of about seventy-five cents per cubic yard; that the transportation to docks in New York would cost forty cents per cubic yard; and that the market price in New York was one dollar and ninety cents or more.
It appears in the report that this evidence was not received “ for the purpose condemned by the Court of Appeals;77 that its purpose was confined “ to the object of proving what this property was worth at the date when it was taken by the State.77 It would seem that the purpose of the official referee may not be the matter of first importance. It was the understanding by the witnesses of those facts, which were received in evidence, that was of consequence because they formed the basis of their judgment. The exact form of the hypothetical question can make little difference in such cases, when the evidence admitted by the trier of the fact and the understanding of witnesses lead practically to certain error. There can be no doubt that from the evidence and the report the witnesses understood that the claimants were going to deliver in the New York market 750,000 cubic yards a year, that the manufacture would cost seventy-five cents a cubic yard, that the shipment would cost forty cents, and that the price would be one dollar and ninety cents.
It is contended that the rule laid down by the Court of Appeals was not violated because the witness did not testify on the theory of future profits, “ during a long series of years.” Some of us think the rule was violated in both of these particulars. The assumption was in fact indulged that the claimants would be able *89to manufacture and deliver 750,000 cubic yards a year, as well as the assumption of the profit indicated by the figures given. Neither of these is admissible. The official referee indicates the line along which his views followed, viz., that those facts were a proper consideration for determining the value “ at the date 77 of taking. He fixed the value, and clearly did so in accordance with those views. It makes not the slightest difference whether one year, “ per annum,” or twenty-five years be the future time under consideration. It still involves the measured transaction of business in the future, and possible future profits on the part of claimants which never did any business and never made a profit. The unit of time is not important. The less becomes the greater by mere multiplication.
It will be noted that only affirmative and future possibilities were taken into consideration, and made the basis of value. No attention was given to matters of competition, industrial skill or the lack of it, the failure of the New York market to absorb claimants7 product, poor business management, bad debts, bad times, financial necessities, labor disputes, or sinking boats. No element of the past or present was included, except a quarry and a half built plant; and as Judge Loughban put it, “ the opportunity to operate it after completion.77
Only by a consideration of such possibilities could one, on the record before us, arrive at the value found. There is no factual basis in the evidence to justify it. No owner ever realized such a value from comparable property, and only one case is known where the price received was as much as one-eighth thereof. Were this value sound, the hundred miles and more of stone land along the Hudson could not be measured by the wealth of the rajahs of India; were this value real, the reflected light of the fact would obscure the classic imagination of Washington Irving. The mind developed on the banks of the river and that has become inured to its business and industrial life, is shocked by the conclusion that stone land on the Hudson is worth $8,000 an acre. The very conclusion is proof in itself that a wrong principle has been followed.
The judgment should be reversed, and a new trial ordered.
Bliss, J., concurs.