Opinion
December, 1935.
Order of the County Court of Nassau county reversed on the law and the facts, with costs, and the proceeding remitted to new commissioners of estimate, to be appointed by the County Court, for appraisal. It was error to average, for the purpose of determining value, the land fronting on McNeil avenue with all of the remaining acres owned by appellant irrespective of their varying nature and topography. The commissioners have found, in effect, that the possible extension of Westover lane is a contingency which is too vague to predicate upon it a theory of award, and such a determination was one of fact with which we are in accord. Nevertheless, it is clear that the most advantageous use to which the property immediately easterly of the taken portion may be devoted, as well as the damage parcel itself, is for subdivision into residential plots. To arrive at the damage, the unit of land which is comparable with the upland taken, as to nature and topography as it extends back or easterly from the frontage of 524 feet, should be determined, with value to be fixed thereon so that the proportionate sum for the damage parcel may be ascertained. Lazansky, P.J., Young, Hagarty and Tompkins, JJ., concur; Carswell, J., concurs in result.