
    In the Matter of County of Suffolk, Appellant-Respondent, Relative to Acquiring Title to Real Property for County Purposes in the Town of Babylon. A. Basil Griffith et al., Respondents-Appellants.
    Submitted March 22, 1977;
    decided May 3, 1977
    
      
      Howard E. Pachman, County Attorney (Henry G. Wenzel, III, of counsel), for appellant-respondent.
    
      Michael J. Goldstein for respondents-appellants.
   Memorandum. The order of the Appellate Division should be affirmed, without costs.

On the appeal by the county we observe that both the county and the claimants and their respective appraisers presented proof of valuation of the rear portion of the condemned premises, then zoned residential, on the predicate that there was a probability of a zoning change from residential to commercial. In this circumstance it was error on the part of the trial court, independently and on its own initiative, to depart from that hypothesis and to fix the value of the rear portion on the basis of residential zoning without increment for probable rezoning.

On claimants’ appeal we conclude that the Appellate Division did not err when in determining the value of the rear portion of the premises on the basis of a probability of zoning change it valued such portion at a different square-foot rate ($1.35) than the rate ($2.50) used by the trial court in valuing the front portion of the premises which was already zoned for commercial use.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.  