In re the City of New York

Townley, J.

The awards made to claimants in the last partial and separate final decree entered in this proceeding on January 12, 1931, are questioned upon two grounds: (1) Upon the ground that there is an inequality between the amounts awarded for the damage parcels contained in this decree and the amounts awarded for the damage parcels which were contained in the first partial and separate final decree entered in this proceeding dated August 6, 1930; (2) it is claimed that the amounts awarded for damage parcels Nos. 153 and 154 (the Libby Hotel property) were excessive.

A brief consideration of the conditions under which the awards for the damage parcels involved in the first separate decree were made demonstrates that the amounts of such awards afford no indication of the value of the other parcels involved in the proceeding and afford no basis upon which a claim of inequality of award can be made.

Prior to the vesting of title about sixty per cent of the owners involved in this proceeding had made certain so-called option agreements which were to form the basis of the compensation to be paid for their property. Options were given in all on approximately 202 parcels. In June, 1929, a resolution was adopted by the board of estimate and apportionment authorizing the city comptroller to purchase from the respective owners of these various parcels the awards to be made them in the condemnation proceeding to be initiated. While it is true that there was no power in the city to hold the owners to their option agreements, as a matter of fact* when the case came on for trial, these owners either defaulted or came into court and said they were satisfied with the option prices. The corporation counsel also stated to the court on the record that the proper procedure for the option holders was simply to rest on the city’s figures. While the options themselves were not made a part of the record, it was stated without contradiction by counsel for one of the claimants that the city’s expert had in each instance appraised the option parcels at the amounts stated in the option agreements. Upon the trial no evidence of value was offered as to these parcels excepting the testimony of the city experts whose appraisals were accepted by the court and incorporated in the separate decree which was entered covering nothing but the so-called option appraisals. The consequence of this method of assessing the values in condemnation is that the owners in many cases, who defaulted at the hearing or consented to accept the figures of the city’s experts, have received substantially less for their property than has been given to owners who have litigated the issue of value.

It is the claim of the corporation counsel on this appeal that the amounts awarded to the contesting owners are too high because the trial court did not feel itself bound to consider the awards made under the option agreements and the judgment entered thereon as evidence of value in relation to the litigated parcels. There has been no appeal by any of the owners who accepted the city’s figures under the so-called option agreements, and the only question is one of evidence. Certainly, the judgment on these awards under the option agreements is not in any sense an adjudication binding upon the contesting claimants, and, as res inter alios acta, it is not even admissible in evidence against them. An examination of the corporation counsel’s stand, as indicated above, shows that were the option prices to be put in evidence as showing value, they would be unworthy of serious attention since they were not litigated values, but were awards made on consent for reasons entirely personal to the owners of the parcels. In effect, however, the same units of value used in making those awards were before the court, because the same expert testified for the city in the contested claims and on cross-examination was required to explain his system of assessing the option parcels.

The decree in the contested cases represents the result reached by the trial court after viewing the property, hearing the expert witnesses for the claimants, and after hearing the same character of testimony from the city’s expert as was given in support of the option awards. We conclude that while the awards under the options may have been low, we are not concerned with that fact on this appeal and think that the record fully supports the judgment.

The only single award seriously attacked is that made for the Libby Hotel property, damage parcels Nos. 153 and 154. This property consisted of a very extensive bath establishment which was patronized not only by people in the neighborhood but by people from all over the city. Two questions were raised: (1) Whether this establishment was a proper improvement in the locality, and (2) what was the fair value of the improvement. At first, the city conceded that it was a proper improvement. There was some public agitation thereafter, and the trial court had a further hearing at which the city attempted to show that it was not a proper improvement. At this second hearing the city produced four witnesses. Of these four witnesses, three had never been inside of the building and the fourth had never been in any part of it except the lounge on the first floor. None of them had any experience in the operation of Turkish or Russian baths and none of them knew anything about the amount of business done, the number of patrons or the demands for this type of building in that locality, although one admitted that that neighborhood was a bath house neighborhood in which many similar establishments were located. The evidence on behalf of the claimant amounted to a full disclosure of the nature of the building, the number of patrons, the prices that they paid, the popularity of the baths in the neighborhood, and the type of accommodation required by such patrons. The witnesses for the claimants were acquainted with the needs of bathing establishments and gave as their opinion that it was a suitable improvement. The trial court was fully warranted on the record in so holding.

As for the amount awarded, there was a conflict of evidence as to the reasonable value of a building of the type of the Libby Hotel. The city’s experts, who testified to the reasonable value of certain parts of the work in the construction of such a building, gave figures which were widely at variance with the figures of the actual cost of the building a short time before the condemnation, which costs were based on contracts awarded after the receipt of competitive bids. There is no reason for thinking that the prices paid under the contracts awarded on those bids were not fair and fully representative of the true market cost at the time the bids were made. The conflict before the trial court was one of speculation based on opinion unfortified by facts, as contrasted with the most satisfactory type of evidence that could be given, namely, the- actual cost of this structure at a time not long anterior to the condemnation and before any substantial decrease in construction costs in this city.

Attention has been called to the fact that this venture became involved in financial difficulties and that the mortgage upon the building was subsequently foreclosed. These conditions may readily have resulted from conditions wholly unconnected with any question as to the building being a suitable improvement for the land upon which it was located. Faulty financing, bad management, or any one of a number of causes might easily have brought about this result. This record contains no evidence satisfactorily establishing that this building was not an adequate improvement or that the financial troubles in which the venture became involved were produced by that fact.

We find no error on this record, and the decree so far as appealed from should be affirmed, with costs.

Merrell and McAvoy, JJ., concur; Finch, P. J., and Martin, J., d'ssent. ■