The improvement in this instance was a bulkhead. It retained the filled-in land constituting the damage parcel. It was not only a proper and adequate improvement but a necessary one. There was only one expert called by either claimant or the city who had any knowledge or experience with respect to bulkheads. He was called by claimant and testified to the reconstruction cost, less depreciation, of the bulkhead taken in the proceeding and the cost of building a necessary substitute to retain the land of claimant which remained after the taking. That testimony was admissible (Matter of City of New York, 198 N.Y. 84), and in the absence of contradiction, controlling. In that case the court said:
"The learned Appellate Division has laid down the rule that, in condemnation proceedings, evidence of the structural value of buildings should not be received, and that the landowner must be confined to proof of the value of his land as enhanced by the value of the structures thereon. This is doubtless the rule applicable to certain cases, but we think it is not, and should not be, a rule of universal application. * * *
"A man may build an expensive mansion upon a barren waste, and, in such a case, the costly building may add little or nothing to the total value. In the greater number of cases, however, when the character of the structures is *Page 502 well adapted to the kind of land upon which they are erected, the value of the buildings does enhance the value of the land. In such cases it is true that the value of the land as enhanced by the value of the structures is the total value which must be the measure of the owner's just compensation when his property is condemned for public use. As to that general proposition there can be no disagreement. But how is the enhancement of the land by the structures which it bears to be proven? If all buildings were alike, the rule laid down by the Appellate Division would be one of convenient and universal application. It is common knowledge, however, that buildings not only differ from each other in design, arrangement and structure, but that many which are externally similar and are situate upon adjoining lands, are essentially different in the quality and finish of the materials used and in the character of the workmanship employed upon them. It must follow that such differences contribute in varying degrees to the enhancement in the value of the land, and we can think of no way in which they can be legally proved except by resort to testimony of structural value, which is but another name for cost of reproduction, after making proper deductions for wear and tear" (pp. 86, 87).
Since this testimony was uncontradicted and undisputed by any one with knowledge or experience, to disregard it was error of law. That error was not cured by the personal view of the premises by the court. Such a view may be helpful to the court in some respects but technical knowledge of construction costs and proper depreciation write-offs could not be obtained thereby.
In Perkins v. State of New York (113 N.Y. 660) this court said: "The fact that the commissioners are required to view the premises and to act to some extent upon their own judgment, informed by ocular evidence, does not deprive this court of the power to review their award upon the question of damages. They may adopt some erroneous rule of damages, and their findings may be such, and the case, upon all the evidence, may be such as to show that they misconceived the facts and erred in their estimate." *Page 503
In Matter of Thompson (121 N.Y. 277) it was held that where proof in a condemnation proceeding as to the damages was conflicting, the jurisdiction of the General Term was governed by the general rules of law regulating appeals to it. For a discussion as to the right to review the amount of damages on appeal, see Matter of City of New York (Avenue A) (66 Misc Rep. 488).
An appeal may be taken to the Appellate Division upon questions of law or upon the facts. (Civ. Prac. Act, § 608.) The value of property taken in condemnation proceedings is a question of fact. (Matter of City of New York [Fourth Ave.], 255 N.Y. 25.) Power to review the amount of the award is expressly given to the Appellate Division by the Administrative Code of the City of New York, section B15-25.0. That section provides: "The city or any party or person affected by the proceeding and aggrieved by the final decree of the court therein as to awards or as to assessments, or either of them, may appeal to the appellate division of the court. * * * Except as herein otherwise provided, such appeal shall be taken and heard in the manner provided by the civil practice act and the rules and practice of the court in relation to appeals from orders in special proceedings, and such appeal shall be heard and determined by such appellate divisionupon the merits both as to matters of law and fact."
The Appellate Division had the power to increase the award and such increase is justified by the evidence. In so far as the order of the Appellate Division increased the amount of the award, it was in effect a reversal. Under section B15-25.0 of the Administrative Code of the City of New York such additional assessments for benefit as may be necessary may be made by Special Term upon appropriate application.
The order should be affirmed, with costs.
LOUGHRAN, SEARS and LEWIS, JJ., concur with LEHMAN, Ch. J.; CONWAY, J., dissents in opinion in which FINCH and RIPPEY, JJ., concur.
Ordered accordingly. *Page 504