We agree that the court properly denied any recovery to this claimant for the period prior to September 30, 1971. However, we are unable to agree with the majority’s remaining conclusions and, therefore, dissent and vote to affirm.
Clearly, there was a de facto appropriation of the claimant’s property. Obviously, the State’s action in padlocking the premises and posting the usual signs to enforce a tax lien against the property of the former tenant effectively ousted the claimant landlord from his property for a public purpose. When this occurs, it is now well settled that there has been a compensable taking (Smith v United States, 458 F2d 1231, 1233; American Oil Co. v United States, 383 F Supp 1281).
While the landlord may have been entitled to proceed under section 232-c of the Real Property Law, his failure to do so was no waiver of his right to compensation and his conduct is no bar to a recovery, since acquiescence in a taking does not necessarily indicate that the owner does not expect compensation (3 Nichols, Eminent Domain [3d ed], § 8.82, subd 2). As Nichols (supra, p 251) states: "It is also settled that the acquiescence by the owner, express or tacit, in the occupation of his land for a public use without compensation in advance * * * does not constitute a waiver of the right to recover compensation for the taking, and is no defense to an action at common law by the owner to recover compensation for the occupation of his land.” (See, also, Galway v Metropolitan El. Ry. Co., 128 NY 132.)
Dealing with a strikingly similar situation, the court stated in Maryland Nat. Bank v United States (227 F Supp 504, 508): "The government put its lock on the premises and placed notices on the outer walls telling of the seizure. These facts convince the court that a taking took place [citation omitted], notwithstanding the lack of demand by the plaintiffs to vacate or the possibility that the government would have vacated upon request.”
Next, we respectfully but vigorously disagree with the majority’s statement "that the possession and control which constituted the alleged de facto appropriation were not in fact exclusively in the State Tax Commission but were under court control during a portion of the period of time herein involved” *348and that "injunctions were in effect * * * which enjoined and restrained the State Tax Commission from transferring or disposing of Conerty’s assets”. As the record plainly indicates, the sole purpose of the injunctions was to stay the sale of the taxpayer’s property until priorities could be established and the language of the orders enjoining the State from "transferring or disposing” of the property only forbid the State from transferring ownership or similarly disposing of the personal property. Nothing contained therein prevented the State from transferring the property to a proper storage facility and thus freeing the claimant’s building. In conclusion, the adoption by the Court of Claims of the rent actually received from Conerty as a measure of the damage was entirely proper (cf. Dipson Realty Co. v State of New York, 39 AD2d 636).
The judgment should be affirmed.
Larkin and Herlihy, JJ., concur with Greenblott, J. P.; Sweeney and Main, JJ., concur in part and dissent in part in an opinion by Main, J.
Judgment reversed, on the law and the facts, and claim dismissed, without costs.