Opinion
December, 1935.
Final decree fixing the value of leasehold rights, in so far as it affects the claim of appellant, affirmed, with costs. No opinion. Carswell, Scudder, Tompkins and Johnston, JJ., concur; Davis, J., dissents and votes to reverse. The lessee had a profitable going business in the property taken by the city. It had been long established and was well known to those who sought recreation of the nature there furnished; and it had a patronage which it was unlikely would follow fully to another location. The "market value" rule applied by the court at Special Term did not, in my opinion, fully or correctly measure the damages the appellant sustained. He was entitled to show the improvements made, the extent of his patronage and that the business was profitable — not as elements of damage but as a basis of the value in use in computing damages — this, not necessarily as a value in use to him individually, but to any one who might purchase his leasehold by assignment with the purpose of continuing to conduct a profitable business at this well-established place, already enjoying a steady patronage. (1 Nichols Em. Dom. [2d ed.] § 233.)