This is an appeal by the city of New York from a final decree of the Supreme Court, New York county, in so far as said decree makes and fixes certain awards for real property acquired in condemnation by the city of New York, and levies assessments therefor. The real property involved was acquired for the purpose of widening portions of Chrystie, Forsyth, Stanton", Rivington, Broome and Hester streets, in the city of New York. The proceeding was a large and difficult one. The decree, however, should not be sustained, because of certain fundamental errors appearing therein.
In the first place, there is an outstanding lack of equality in awards for separate parcels of property similarly situated and obviously of relatively equal value. There is no dispute concerning this discrepancy in the awards.
For example, in block 422 there are eight lots located on the Chrystie street side of the block, numbered parcels 41 to 46, all of the same area and dimensions and all at least one hundred feet distant from the cross streets. The city valued these eight parcels at approximately $15,525 a lot. The court awarded this unit *327value for six of the eight lots, but for two of said lots, namely, 53 and 54, awarded $18,000 a lot.
In block 421, on the Forsyth street side, the court adopted the estimate of the city of $17,500 a lot for ten parcels, but allowed $20,000 a lot for ten parcels similarly situated.
In block 418, on the south side of Broome street, the court awarded for damage parcels 215, 216 at the unit rate of $26,500, whereas, for damage parcels 209, 210, 211, 212 and 213, 214, of practically the same area and dimensions and similarly situated, a unit rate of $21,000 was awarded.
The foregoing are but a few of the many discrepancies in the awards. With the exception of Canal street and the north side of Delaney street, there is not a block front in the entire proceeding in which land valuations have not been adopted irreconcilable with other land valuations on the same street.
It is sought to explain these discrepancies in the briefs of the respondents by setting forth that certain of the owners had entered into agreements with the city giving the latter the option to acquire the awards in condemnation proceedings at a fixed price. In such cases, it is alleged, no evidence was offered by the claimant of market value. The city submitted, as the reasonable market value of these lands, the figures agreed upon. These were not controverted by the claimants, and were accepted by the court. It is urged that these figures were not binding upon the owners of contiguous parcels who had not entered into like agreements with the city, and that such owners were entitled to prove, if they could, and be awarded, a higher market value.
The difficulty with the foregoing contention is that the function of the trial court was to determine the just compensation to be made to the respective owners of the property to be acquired. Just compensation means equality of awards for respective parcels of property similarly situated and of relatively equal value. This and this only was the measure for the property to be acquired. The fact that the city had options which they might accept to purchase the awards could have no bearing upon the amount to be awarded except as an outstanding fact showing what owners of more than sixty per cent of the property to be acquired were willing to accept as the value of the property being condemned. Contiguous parcels are not bound by the evidence adduced on adjoining parcels, but in fixing just compensation the trial court could not find separate pieces of property of like dimensions and similarly situated and on the same block, of varying values. Looking at the matter in another way, if the city had in effect purchased a portion of the property, the condemnation as to that portion was a vain *328and useless thing. Only in the event that the city was to award just compensation was the work of the court justified. Moreover, this viewpoint is borne out by the record, for only incidentally therein does it appear that there were even existing options to purchase awards. Upon this record the amounts found do not rest upon and could not rest upon options to purchase awards to be made for property to be valued by the court.
All that appears in the record is that the board of estimate and apportionment authorized the comptroller to purchase awards to be made herein, and that a number of property owners offered to sell at certain prices. These offers were neither accepted nor rejected. The city submitted testimony as to the value of all the damage parcels involved, which was consistent throughout and was not predicated upon the aforesaid offers of certain property owners to sell their awards. The owners of these parcels merely expressed their willingness to accept the figures of appraisal of the expert witnesses of the city as the reasonable value of the lands. The court was called upon to fix the market value of all these parcels. Having fixed certain of these values in accordance with the testimony adduced by the city, the court could not disregard these values when considering similar parcels in conjunction with like testimony. To hold otherwise would in effect be turning to the prejudice of the city the fact that a large majority of the property owners were willing to accept as fair and reasonable the appraisals of the city as to the value of the property.
Objection is strongly urged against the award for damage parcels 153, 154, known as the Libby Hotel. The amount awarded was $2,850,000, being $595,000 for the land and $2,255,000 for the building. Shortly before title vested in the city a receiver in foreclosure was in possession and the premises, for which was awarded this $2,850,000, were bid in at an open sale in foreclosure for $75,000 over a mortgage originally for $1,500,000 and at the time of the sale approximately $1,420,000. It is true that a sale in foreclosure is very often not a true measure of. real property’s worth. There is here, however, a difference of upwards of $1,350,000.
After the trial court had found the value as above stated, an application in due course was made for a rehearing, whereupon the court ordered a rehearing “ in the interests of. justice, * * * limited to the question whether or not the Libby Hotel building was a suitable and adequate improvement.” Thereupon witnesses were called by both sides, who testified pro and con in general terms only, affirming and denying that the structure was an adequate improvement. Following this hearing the trial court held the structure adequate.
*329Some confusion seems to have been caused by the language used. Counsel for the respondent says in his brief: “ For example, the city might have conceded the general suitability of the building and still contested the amount which it added to the value of the land, but it did not choose to do this either upon the trial or upon the rehearing * * *. On the rehearing the city rested its case solely upon the question of suitability. And that issue was overwhelmingly against its contention.” I do not so read the contention of the city upon the rehearing. The term “ suitability ” is not so limited. It not only comprises the general suitability of the building for the locality, but also concerns the value that the building adds to the value of the land. For instance, to contend that a Russian and Turkish bath, with the other conveniences which were here attached, was not suitable in this neighborhood would be absurd in view of the fact that other buildings furnishing like facilities were common to the locality. Such a building might indeed be suitable if on a much less elaborate scale than was the Libby Hotel. What appears clear here is that this building, while suitable in the sense that a Russian and Turkish bath establishment would be suitable for the locality, nevertheless did not add its full structural value to the land because of the very expensive nature of the structure. The trial court holding that the building was suitable sought to add the total structural value to the land. The error was in not recognizing the principle that it is only where a building is a suitable improvement, not only as to kind but as to quantum, that the law permits the owner to add the full structural value of the building to the value of the land. It was the overlooking of this principle which produced a result where the loss caused by an error of judgment in creating too elaborate a structure has been lifted from the shoulders of those making the error and shifted to the city. Only when a building enhances the value of the land is the owner entitled, in order to establish just compensation, to prove the value of his land and the value of his building as a structure. As was said by Judge Werner in Matter of City of New York (Blackwell’s Island Bridge) (198 N. Y. 84): “In some cases the value of expensive structures may not enhance the value of the land at all. An extremely valuable piece of land may have upon it cheap structures which are a detriment rather than an improvement. 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 well adapted to the kind of land upon which they are erected, the value of the buildings does enhance the value of the land.”
*330Moreover, upon the rehearing there was error in rejecting testimony offered by the city upon the market value of the land and building as bearing on the inquiry whether the building as constructed was an adequate improvement. Upon.the rehearing the city called three real estate witnesses. These were permitted to testify that in their opinion the hotel was not an adequate or suitable improvement. They were not, however, allowed to state the market value of the land and building taken together as bearing on the issue of suitability. Thus the facts upon which the opinion of suitability was based were excluded. In Matter of City of New York (Inwood Hill Park) (230 App. Div. 41) this court reversed a decree and remitted the proceeding to the Special Term for rehearing because the Special Term had refused to receive evidence offered by the claimants as to the most profitable use of their property, namely, whether it could profitably be used for apartment house sites. Conversely, in this case the city was entitled to the reception of evidence of value showing inadequacy or unsuitability of the improvement on the property it was acquiring.
It follows that the decree, in so far as appealed from, should be reversed and the matter sent back to Special Term for a new trial.
Martin, J., concurs.
Decree so far as appealed from affirmed, with costs to the respondents.