Opinion
November 13, 1959
Both litigants appeal from a decision of the Court of Claims awarding damages to the claimant. The State of New York appropriated certain streets in the City of New Rochelle for Thruway purposes and in so doing the taking rendered valueless pipes and other property of the claimant located in the streets under franchise rights. The State, without offering any proof, contended such an appropriation was not subject to a claim for damages and in any event, the only damages were "salvage value". The claimant appeals from the amount of the award on the grounds it is insufficient as the proper method of damages was not used. We are in accord with the decision of the lower court that the proper measure of damages for pipes and other property of the claimant located in the streets is original cost less depreciation but set aside and reverse the award as there was no proof of the value of the property and therefore no basis for the amount of damages. On the retrial of the issues both sides should be prepared to submit proof, if they so desire, on the question of damages. Judgment of the Court of Claims reversed on the law and facts and a new trial granted, without costs. Foster, P.J., Bergan, Gibson, Herlihy and Reynolds, JJ., concur. [ 14 Misc.2d 807.]