dissenting.
In addition to the facts recited in the majority opinion it should be noted that the appraisers appointed by the county court of Douglas County, Nebraska, appraised the value of the leasehold interest of the appellee in the sum of $70,000, which, amount was the value of the leasehold over and above the amount due as rent upon the balance of the term of the lease. This award was made in September of 1974 and the actual taking of the premises did not occur until some 3% months later on January 1, 1975. The majority opinion recognizes the fact that the City of Omaha filed a petition on appeal and in that petition admitted the value of the leasehold interest on September 19, 1974, was $17,000. The majority seems to hold that the fact the jury found zero value indicates the interest depreciated in 3% months from $17,000 to zero dollars. There was neither evidence nor testimony of this fact introduced at the trial.
The City of Omaha had three expert witnesses testify in this matter. One valued the leasehold in the sum of $19,233 as of the date of the taking; the second was not allowed to give his opinion by the trial judge; the third witness testified that in his opinion the value of the leasehold interest in excess of the amount of rent due or to be paid by the condemnee was of no value. Objection was made to the testimony of this witness on the basis that no foundation had been laid; however, the court permitted the witness to so testify.
Our court held in the case of Kuhlman v. Farmers Union Co-Operative Assn., 152 Neb. 597, 42 N. W. 2d 182, as follows: “Where, in an action to recover a money judgment, the answer of the defendant admits the right of the plaintiff to judgment for any sum, the defendant cannot give evidence contradict*754ing the admission of his answer, nor can the plaintiff introduce the answer in evidence; * * *. Although the petition was filed by the City of Omaha the allegation in the petition that the value of the leasehold interest was $17,000 was in effect a judicial admission made the same as if it had been in an answer. It was error for the trial court to admit evidence on behalf of the condemner that the value of the leasehold interest of the condemnee was less than $17,000. It was, therefore, error for the trial court to admit the opinion of the third witness who testified for the condemner.
The majority opinion seems to hold that the admission by the City of Omaha was relevant evidence which the condemnee would have been entitled to introduce in evidence. The above cited case, however, states that: “* * * [N]or can the plaintiff introduce the answer in evidence; * * This would appear to be in direct conflict to the holding made by the majority in this case stating that the condemnee would have been entitled to introduce evidence of the admission of the value.
A further indication that the City of Omaha recognized a debt to the condemnee is found in the prayer of the petition filed by the City of Omaha when this matter was appealed to the District Court for Douglas County, Nebraska. The prayer is as follows: “WHEREFORE, Defendant prays that the Court determine and find the fair market value of the interest taken, and issue an order to the County Judge of Douglas County, Nebraska, to pay to the Plaintiff such amount out of the funds heretofore deposited by the Defendant and return the balance, if any, to the Defendant.” The City of Omaha had paid the sum of $70,000 into the county court of Douglas County, Nebraska, so that it might take possession of the property. Further evidence that the City considered a debt was owed to the condemnee was the fact that the City entered into a stipulation permitting the *755condemnee to withdraw 85 percent of this money so deposited with the county court of Douglas County, Nebraska.
The trial court recognized that prejudicial error towards the condemnee had occurred and ordered a new trial. This action should be sustained.
McCown, J., joins in this dissent.