I dissent in part and vote to affirm Special Term’s valuation of the improvements. Special Term, in its well-reasoned opinion, stated as follows: “ Considering all the evidence, including admissions against the interest of all parties, the location, condition of the property, prevailing conditions in the neighborhood, prevailing demands, as well as the uses to which the property could reasonably be devoted in order to obtain its greatest market value as a whole, the court finds that the best use of the land at title vesting was its actual use. It further finds that for that use the structures constituted an adequate improvement for the land.”
I fail to see how, in the light of the record presented, that court could have arrived at a different conclusion. It is well supported by the evidence and we should not reverse these findings;
I need not say more than what was said by the Justice at Special Term. But, I would like to make a few observations in view of the position taken by the majority of this court.
The burden of the city’s argument — and indeed it seems to be that of the majority — is that without the New York Giants the stadium was of no value. It may well be that without that distinguished tenant it would be worth less, but that is quite different from saying that the stadium, at the time of condemnation, was worthless.
The property was condemned in September of 1961. For the year 1960-1961 the city assessed the stadium at $525,000 (exclusive of parking lot fixtures and seats alleged to be worth $450,000). I do not believe that the city would have us think that it acted unfairly when it made that assessment. How then can it say that at the time of condemnation the stadium sud*378denly became worthless? There is nothing to show any change from the time the assessment was levied. The Giants had already left the premises. Indeed, the assessed valuation may be considered in the circumstances as an admission against interest on the part of the city. It should be noted that the relation of that assessment to the award is substantially the same proportionately as the relation of the 1960-1961 land assessment is to the land award which the city does not contest. Consistency can be a virtue even in condemnation proceedings and it might well be to the city’s ultimate advantage to set an example in that respect.
The continued use of the stadium, immediately following its acquisition, hardly supports the city’s position of worthlessness. Would the city under any circumstances have demolished the stadium immediately upon having taken title? Surely not. Indeed it is quite apparent that the city not only wanted, but needed the stadium—and it matters not for what reason. And it is also quite apparent that it was because of that need that the condemnation took place at the time it did — a most uneconomic step if indeed the stadium were worthless and about to be demolished.
The majority fixes the life of the stadium to be coextensive with the term of the lease. Such conclusion is not supported by the record. The tenant’s expert witness estimated an indefinite life, conditioned upon good maintenance and replacement of wearable parts. Even the city’s expert estimated its useful life to be 60 years from the date of its erection.
The majority rests its conclusion of a 40-year life upon what it seems to say was “ visualized by the parties * * * when the lease was made.” Of course, what the parties might have visualized at the time of the making of the lease is no indication of the period of actual usefulness.
However, there is no basis for concluding that when the original lease was signed the life of the stadium was visualized to be limited to the term of that lease. True, there was provision made for its possible demolition at the termination of the lease, but that was merely a contingency provided for by the careful drafters of the instrument.
There was no mandate in that document that the stadium be destroyed at the end of the term. It was left on a “ wait and see ” basis. There was just as much room for anticipation of a life long beyond the term of the lease, as there was an expectancy that it could serve no useful purpose after expiration of that term. The careful and conservative drafters of the lease made provision for both. It should be noted that the Coogans, the *379landowners, as late as 1959, and at a time when the parties could " see ’ ’, did not seem to think that the stadium was in its last days. They then protested the proposed plan to replace it with a housing development, predicting for the stadium a renewed and long life as the focal point of a great center of sports — a home for football, soccer etc. Nor did the city think in terms of the demise of this stadium at the termination of the lease. If it had so thought there would have been no economic justification for the taking just eight months prior thereto with the prospect of attendant costs of demolition and a possible award for its taking. On the contrary, both the landowner and the city thought of the stadium in terms of its continued use after the term of the lease. And it was so used. In support of its contention that the stadium was useless, the city points to the fact that there were insufficient facilities for parking. That did not seem to be an obstacle to its successful operation by the “ Mets ” under the lease given to that organization by the city upon its having acquired title. If indeed there had been too little parking space, the testimony indicates that the situation could have been cured by construction of garage facilities. Moreover, it hardly becomes the city to present that argument after the city had previously condemned part of the parking space originally used in conjunction with the stadium. It may not destroy and then attempt to capitalize on the results of such destruction. However, as indicated, the objection, if indeed it had any merit, was not a fatal one.
I think it is thus quite evident that the city condemned the Polo Grounds at the time it did for its needed use as a sports' field. Consequently, speculation as to what was the best use that the property could be put to was unnecessary and immaterial. Be that as it may, the evidence strongly sustains the court’s finding that the best use of the property was for a sports’ field. The expert for the Coogans testified—contrary to the position taken by the Coogans shortly before condemnation— that the property could be best used for a housing development. The city took issue with that and it has not changed its position.
On behalf of the city, it was testified that the property could be used for light industry. However, the city’s expert conceded that such conclusion was based largely on speculation. The court found that the best use of the land was for what it was then being used, i.e., a sports’ center. That conclusion is strongly supported by the evidence and there is no justification to disturb it.
*380Compensation therefore should be given for the improvements, as such, at their value at the time of the taking.
The city’s expert gives the stadium a value of $75,000. Unless the stadium was really worthless at the time of condemnation there is no justification for that figure. The majority adds $100,000 to that unsupportable amount by the application of a formula—as novel as it is ingenious, but which I think is unsound. It is founded upon a speculative assumption of fact; the application of erroneous principles of law and the utilization of improper basic figures.
It is premised upon the assumption that the life of the stadium can be only as extensive as the term of the lease. In other words, that at the time of the condemnation it had but 8 more months of usefulness. As heretofore indicated, the evidence does not support such a conclusion. Consequently, the use of the 8-month period as a factor in determining the value of the lease is improper. The value of an improvement depends upon well-known factors, chief among which are its usefulness and the prospect of economic survival. The unexpired portion of this tenant’s lease is not one of those factors. Parenthetically, the tenant does not ask for any award for the unexpired portion of its lease. The award is total—to be allocated between the owner and the tenant in accordance with their agreement and not at all dependent on the period of the lease that remained at the time of acquisition.
The sum of $1,724,714 arrived at as the value of the improvements (including fixtures) is indeed a modest one. Nobody contested the estimate of the reproduction cost as testified to by the tenant’s expert. Notably there seems to be agreement that it was underestimated. Unless the court found the stadium to have outlived its usefulness it could not have deducted much more than the 78% which it deducted for depreciation, plus economic and functional obsolescence. But the court did not find the stadium to have outlived its usefulness. It justifiably found to the contrary. How can we, on this record, find differently? The award for the improvements should be confirmed.