Because of a claimed inadequacy of an award for the permanent appropriation of a portion of claimants ’ property located in the Town of Amherst, appeal is taken from a judgment of the Court of Claims. Claimants also appeal from an order denying their motion to set aside the decision and permit additional proof to be introduced.
Critical to an evaluation of claimants’ damages is the question regarding the boundaries of their property, consisting of a gasoline filling station and a small office building. In their attempt to show that the appropriated parcel was corner property, claimants moved to reopen in order to introduce incontrovertible evidence to prove that the property abutted on Niagara Falls Boulevard and Sheridan Drive. This motion should have been granted and we consider its denial as an improvident exercise of discretion. Considering the matter sought to be offered as part of the proof in the case (CPLR 4522), we reverse and grant the motion. We are not required to remit for a new trial since evidence of this character may be “ ‘ received by the appellate court for the reason that, being in its nature incontrovertible, it would be idle to send the case back for a new trial for the sole purpose of admitting it. ’ (Dunham v. Townshend, 118 N. Y. 281, 286; People v. Flack, 216 N. Y. 123, 129; Matter of City of New York [Newport Ave.], 218 N. Y. 274, 279; Matter of Cooper, 93 N. Y. 507; Rossbach v. Rosenblum, 260 App. Div. 206; Cohen and Karger, Powers of the New York Court of Appeals, § 168.) ”. (Ripley v. Storer, 309 N. Y. 506, 518; see, also, People ex rel. Williams v. Murphy, 6 N Y 2d 234.)
In our view the award of $24,500 as damages for the permanent appropriation of a portion of claimants ’ property is inadequate. The court’s conclusion and finding that the subject property was not a corner parcel and the resulting valuation based thereon were erroneous, and a contrary conclusion should
The judgment should be modified accordingly, and the motion should be granted.
Del Vecchio, J. P., Moule and Henry, J'J., concur.
Judgment unanimously modified on the law and facts in accordance with the opinion herein, and as so modified affirmed, with costs to claimants.
Order unanimously reversed without costs, and motion granted in accordance with the opinion.