(dissenting). I vote to reverse the order and deny the motion on the ground that the statute (Administrative Code, § B15-20.0,'subds. d, e) should be construed as permissive and as relating merely to buildings which the city intends to demolish. The aforesaid subdivisions d and e were added by chapter 588 of the Laws of 1946, and continued by chapter 332 of the Laws of 1948. Section 1 of the Session Laws enacting these measures declared the existence of a housing shortage as an emergency requiring that provision be made for the expeditious sale and removal of dwellings affected by condemnation proceedings. The new subdivisions were added to section B15-20.0 of the Administrative Code, which relates to agreements for compensation for the removal of structures as 'a substitute for paying the value thereof. It would seem to me that the Legislature intended a substitute for the prior procedure of selling surplus buildings at auction to the highest bidder and to aid in relieving the housing shortage by giving preference to the former owner and others in accordance with the statute.
In my opinion the Legislature never had it in mind that the city be forced to surrender a building intended for its own use at a sum based on salvage value equal to only a fraction of the amount which the court had compelled the city to pay for taking the building. For instance, in the present case the order would require the city to give up a building for $5,000, although it had just paid $30,000 for the same.
It is true that the law first provides that the owner in possession shall have the right to petition the court to fix the value. Later it provides that if the former owner has not so petitioned, the representatives of the city may petition the court, which may allot the building in the order of preference provided for tenants, veterans and other designated classes of persons. Unless a different rule was intended to be applied with respect to the rights of a former owner as distinguished from those of tenants and veterans, a distinction which might well render the statute invalid, it would seem that the mandatory “ shall ” should be construed to mean “may”, for clearly the presentation of a petition and the transfer of the building in the second instance was discretionary with the city and would only occur when the building was to be demolished.
This construction is supported by a memorandum filed with the Governor in connection with the bill which became chapter 588 of the Laws of 1946, That memorandum recites: “ This *201bill is necessary to correct a bad situation which has arisen as a result of the housing shortage. Under existing law, the city is compelled to offer such dwellings to the highest bidder and as a result, a small group of speculators have been specializing in purchasing the condemned dwellings, removing them, and then reselling them at exorbitant prices which are far in excess of the ability of the dispossessed owner to pay. The bill will correct that situation.” (New York State Legislative Annual 1946, pp. 131-132.)
The 1‘ existing law ’ ’ referred to in the above quotation was, undoubtedly, section 384 of the New York City Charter. There was no prior law requiring the city to sell dwellings at auction which it desired to keep for its own purposes. Thus, it would seem reasonable to infer that the amendatory statutes were not intended to require a compulsory surrender of any building taken in condemnation and needed by the city.
It is suggested that the order appealed from, when read in the light of an earlier memorandum by the trial court, did no more than require the city to reopen the proceedings to permit the court to make a different award of damages, if the city intended to keep the building rather than demolish it. I know of no authority for such procedure. There appears to be no basis for the opening* of a final decree under such circumstances. Nor is there any basis in law for a different award as the value of the condemned property because the condemnor has decided to put it to one use rather than another. (Matter of Simmons [Ashokan Reservoir, Sec. No. 6], 130 App. Div. 350, affd. 195 N. Y. 573, affd. sub. nom. McGovern v. City of New York, 229 U. S. 363.) The cases in the majority opinion relating to the intrinsic worth of property being affected by the uses to which it might be put by the condemnor have no relation to a residential property in which the owner has installed unique features to gratify his individual tastes or desires, and which features reflect no increase in market value.
The city took the property in fee and presumably has been required to pay the fair market value. No appeal was taken from the decree fixing the award, and there was no authority in the present circumstances to reopen it for the modification of the sum awarded. In any event, as section B15-20.0 had no application to the present property, the entire proceeding was unwarranted.
I vote to reverse the order and deny the motion.
*202Dore, J. P., Cohn and Van Voorhis, JJ., concur in Per Curiam opinion; Callahan, J., dissents and votes to reverse the order and deny the motion, in opinion in which Shientag, J., concurs.
Order amending the final decree insofar as it affected damage parcel No. 91 modified in accordance with the opinion herein and, as so modified, affirmed, with costs to petitioner. Appeal from order denying petitioner’s motion for reargument dismissed. Settle order on notice.