In this condemnation proceeding, appellant appeals from a second separate and partial final decree of the Supreme Court, County of Bronx, entered May 5, 1958, insofar as it makes an award of $296,350 for damage parcels 322, 323 and 324, and 'an award of $75,900 for damage parcel 654.
The sole issue is the quantum of the awards.
Appellant contends that the awards are grossly excessive, based on erroneous theories of law and contrary to the weight of the evidence.
Damage parcel 654, measuring 67,500 square feet, had frontages on Barkley, Balcom and Graff Avenues; 8,500 square feet were in a local retail zone and the balance was in a residential zone. A 10,000 square foot plot on Graff Avenue was fenced and used for the sale of cemetery monuments. It contained a 30 by 40 feet one-story brick and concrete office and workshop. The balance of the plot was unimproved. In September, 1954 claimant Costantino Di Tullio purchased this property from the City on New York for a total consideration of $13,000; the assessed valuation was $11,000, the award is $75,900, of which $66,900 is allocated to the land.
We hold that the award for damage parcel 654 is excessive and contrary to the weight of the evidence in that it disregards the price of $13,000 at which this property was sold to the claimant by the appellant in 1954 and is more than six times the assessed valuation of $11,000.
The 1954 sale was at public auction and it is fair to assume that the price paid for the land was the best price obtainable by the City of New York. No other comparable sales appear from the record. There is insufficient evidence in the record to sustain an increase in excess of five times the sales price of this land during the three and one-half year period it was owned by the claimant. While a permanent improvement may increase the value of the land the fencing off of 10,000 square feet of the 67,500 square foot parcel for a cemetery monument yard and the construction of a small building thereon cannot possibly have this effect.
We feel that Special Term did not give due consideration to either the sales price of $13,000 in 1954, or the assessed valuation of $11,000, especially in view of the wide discrepancy in the estimates of experts offered by the appellant and the claimant, and the proof is woefully lacking in any attempt to reconcile *367the wide difference between the assessed valuation and the experts’ opinions on value.
The initial award of $289,850 for damage parcels 322, 323 and 324 was increased in the amount of $6,500 by the court after a hearing on objections. The award appealed from totals $296,-350; land $256,350, improvements $40,000.
Damage parcels 322, 323 and 324 were situated on the south side of East 177th Street between East Tremont and Revere Avenues. They were zoned for retail purposes. Damage parcels 322 and 323 measuring 40,970 square feet were unimproved. Damage parcel 324 measuring 10,294 square feet was improved with a gasoline station which had been erected as a nonconforming use pursuant to a variance for a term of 15 years. It was leased to a tenant for 15 years. The lessee undertook to pay an annual rental of $8,400, plus 2 cents per gallon on every gallon exceeding 420,000 gallons per annum, and was responsible for taxes and nonstructural repairs. The lessee sublet the gasoline station to an operator at $5,880 per annum with the additional obligation on the operator to pay an additional rental when his volume of sales reached 35,000 gallons per month.
The assessed valuation of the three parcels was $117,000. Appellant’s expert testified that the property was worth $215,-774. Claimant Robert P. Marshall offered two experts; one testified the value of the property was $368,677, the other $383,-500.
On the hearing of objections, counsel for the appellant stated: “ I do believe that your Honor’s award, considering- all the evidence that was presented at the trial, is fair, just and reasonable; and I believe it should remain standing.” Under the circumstances, we give no effect to the statement and review the decree solely on the basis of the record.
After this statement was made, the court increased the award by $6,500. Apparently the increase of $6,500 was based on the argument of claimant’s counsel at the hearing. We do not believe that the argument there advanced warranted the increase, nor do we believe that the record sustains the award made.
The trial court failed to give any weight to the assessed valuation and thus arrived at a value which is grossly excessive. In addition, the value of the improvement on damage parcel 324 depended largely on the personal liability of the tenant, a prime risk, and the effect thereof was carried over in the awards made on damage parcels 322 and 323. The record fails to disclose comparable sales and none of the sales testified to sustains the award. The fact that the unit lot awards conform to the *368unit lot awards of other parcels similarly situated and not reviewed by this court is immaterial.
On this record we are unable to arrive at proper awards and consequently cannot comply with subdivision 2 of section 584 of the Civil Practice Act. (See Leonard v. Frantz Co., 268 App. Div. 144, 148.) Accordingly, the second separate and partial final decree should be reversed, on the law and on the facts, and a new trial directed in the interest of justice, with costs to appellant.