Opinion
Argued November 27, 1972
Decided December 29, 1972
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, RICHARD S. HELLER, J.
Louis J. Lefkowitz, Attorney-General ( J. Lawson Brown and Ruth Kessler Toch of counsel), for appellant.
Homer E. Peters and Livingston T. Coulter for respondent.
Order affirmed, with costs, in the following memorandum: The appeal presents no dispute as to the rule of law under which a condemnee is denied recovery for enhancement in value attributable to the appropriation itself (see, e.g., United States v. Miller, 317 U.S. 369); but both courts below, in determining the purely factual issues presented, were warranted in finding no basis in the evidence for application of the rule.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN and GIBSON. Judges BREITEL and JASEN dissent and vote to reverse and grant a new trial on the dissenting opinion at the Appellate Division.