I cannot agree with the majority that the decree here under attack must be reversed because of the utilization of an improper measure of damages by the trial court. Indeed, I am persuaded that the measure laid down by Trial Term is an appropriate one in the unique situation here presented.
It is axiomatic that the claimant is entitled to just compensation for the taking of its property (US Const, 14th Amdt; NY Const, art I, § 7, subd [a]; McCoy v Union El. R. R. Co., 247 US 354). "Just compensation has been measured in cases of this kind by the fair market value of the property taken as of the date of the taking” (Matter of Board of Water Supply of City of N. Y., 277 NY 452, 456; see, also, 4 Nichols, Law of *116Eminent Domain [1978 ed], § 12.1; 1 Orgel, Valuation under the Law of Eminent Domain [2d ed], § 17). It is the general rule "that the fair market value is the price for which the property would sell if there was a willing buyer who was under no compulsion to buy and a willing seller under no compulsion to sell [citation omitted]. In the determination of the fair market value, the condemnee is entitled to have the appraisal based on the highest and best available use of the property irrespective of whether he is so using it” (Keator v State of New York, 23 NY2d 337, 339).
Here, apparently, the claimant was using the premises for its best available use, the warehousing of records. As is indicated in the majority opinion, it was able to obtain a higher return on this use than other premises in the same vicinity by utilization of a simple technique which enabled it to tailor space rented by a lessee. Thus, a lessee, because it paid only for the space actually used by it, would pay a total lesser rental even though it would pay a greater rental per square foot. In sum, the technique constituted a service rendered by the claimant to its tenants which is not compensable in condemnation. Thus, even though the service so rendered enabled the owner of the property to obtain a greater rental value per square foot, it did not change or alter the highest and best available use; that was and remained the warehousing of records.
The idea upon which the service is bottomed has not been taken by the city, nor has claimant been deprived of its use. It remains with claimant and, in all probability, will be rendered by it in the premises which it acquired in the general area after the instant condemnation. Hence, it is entitled to no compensation for the increased net income of the premises resulting from the service so rendered. It follows therefrom that a determination of market value, predicated on the capitalization of this enhanced net income would be improper.
Accordingly, I dissent from the holding which would include this item as a proper basis for determining fair market value.
Murphy, P. J., and Sullivan, J., concur with Markewich, J.; Sandler and Bloom, JJ., dissent in separate opinions.
Fourth separate and partial final decree, Supreme Court, New York County, entered on October 18, 1976, reversed, without costs and without disbursements, on the law and the *117facts, and vacated, and the matter is remanded for further proceedings not inconsistent with the opinion of this court.