
    In the Matter of Ernest Abdella, Appellant, v. Robert Scribner, as Commissioner of Assessment and Taxation of the City of Gloversville, et al., Respondents. (And Another Proceeding.)
    Argued December 5, 1972;
    decided December 29, 1972.
    
      
      Ernest Abdella, appellant in person.
    
      Angelo D. Lomanto, City Attorney, and H. Andrew Schlusberg for respondents.
   Order affirmed without costs. Although error was committed when the trial court accepted the city expert’s method of valuation based in part on the capitalization of income from hypothetical buildings, it was harmless error as the other evidence 4n the record amply supports the determination in the courts below.

Concur: Chief Judge Fuld and Judges Burke, Scileppi,, Bergan, Jasen and Gibson. Judge Breitel dissents and votes to reverse in the following opinion.

Breitel, J.

(dissenting). I dissent and vote, to reverse and remand for a new hearing on the ground that an examination of the entire record demonstrates that the city’s expert relied exclusively on a hypothetical assumption as to nonexistent and nonprotected buildings. The déficiency is not supplied by the reference to other rental values which were used only as an adjunct to the computation of impermissible, hypothetical structures (see Arlen of Nanuet v. State of New York, 26 N Y 2d 346, 353-354, 356, 358; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126,130-131; Levitin v. State of New York, 12 A D 2d 6, 8). Moreover, the record does not contain proof pf comparable sales to support the Referee’s findings.

Order affirmed, etc.  