(dissenting). In addition to the reasons stated by Judge McNamee, in which I concur, there are certain others which appear to me to render a reversal of this judgment and a new trial necessary, much as I believe this litigation should be terminated.
At the outset I differ with the majority on their statement that the judgment under review should not be disturbed by our court unless it clearly appears that it includes unlawful, or excludes *90lawful, elements of damage or unless it is tainted with unmistakable legal error. We review the facts as well as the law and the value of property taken is a question of fact. (Civ. Prac. Act, § 608.)
Next the learned official referee in stating the rule to be followed said that the claimant, in such a case as this, was entitled to recover the fair value of the improvements and also the value of the land enhanced by the improvements. He cited Matter of City of New York (198 N. Y. 84) as an authority to support this statement. The language of that case is as follows: “ In such cases it is true that the value of the land as enhanced by the value of the structures is the total value which must be the measure of the owner’s just.compensation when his property is condemned for public use. * * * But when a building has an intrinsic value, which must be added to the value of the land in order to ascertain the value of the whole, the owner may not be able to establish his just compensation unless he is permitted to prove the value of his land as land and the value of his buildings as structures. By adding to each other these two quantities the result is really the value of the land as enhanced by the buildings thereon.” In finally fixing the value of the premises taken the referee allowed $1,333,209.62, which he allocated as between improvements and land at $450,709.62 for improvements, $2,500 for marsh lands and $880,000 for the uplands “ as enhanced by the value of the improvements.” It is thus apparent that he fell into legal as well as factual error and included an element of value which did not exist. To the value of the land, which included all its potentialities, should have been added the value of the improvements, and nothing more. The rule laid down in Matter of City of New York (supra) does not support the application attempted to be made of it by the referee.'
Finally the facts now presented to us differ but inconsequentially from those in the prior records. In the hypothetical question propounded to the experts for the claimant there has been a change in form but not in substance, and the facts upon which the opinions are based are practically the same as before. The claimant’s case lacks the usual indicia of value. A wholly fictitious value has been built up based upon speculation as to what the property would produce by way of profits down the years. The award is still “ grossly excessive ” and should be reversed.
Judgment modified by deducting therefrom the sum of $5,000, and as so modified, the judgment is affirmed, with costs.