Opinion
June 3, 1944.
Appeal from an award following an earlier reversal by this court ( County of Broome v. McKune, 267 App. Div. 13). The award should be affirmed on the authority of Matter of Goodrich v. Vil. of Otego ( 216 N.Y. 112) and Donohue v. Keystone Gas Co. ( 181 N.Y. 313). Order and judgment affirmed, with costs.
The issues here involved concern eight maple trees located within the boundaries of the former highway. The commission awarded as consequential damages to the remaining property $2,200, which included $600 for the loss of said eight maple trees "not as representing the value of the trees themselves, but as compensation for the deteriorating effect of the absence of those trees upon the remaining property". This proceeding was before this court at the November, 1943, term. This court reversed the order insofar as the commissioners had made an allowance for these maple trees, and in remitting the matter to the County Court for the appointment of a new commission held that the amount awarded for these trees should be eliminated from any new award, although the decision there stated that such facts could be considered if the commissioners are so advised in connection with consequential damages. Trees within the highway limits may be removed by proper public officials without compensating abutting owners if the removal be necessary for highway purposes. ( County of Broome v. McKune, 267 App. Div. 13, supra.) Order and judgment should be reversed and matter remitted to the commissioners with a direction that a proper award be made.