
    David H. McHale, Respondent, v. State of New York, Appellant.
    (Claim No. 29090.)
   Judgment modified on the law and facts in accordance with the memorandum and, as modified, affirmed, without costs of this appeal to either party. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: Appeal from a judgment of the Court of Claims in favor of claimant. The award of $6,000 and interest was for .268 of an acre of land taken by the State for highway purposes from the extreme eastern end of claimant’s property, which was originally a rectangular parcel approximately 600 feet in length from east to west and 100 feet in depth. The buildings were and are at the westerly end of the premises. The main building, which was used by claimant as a roadside tavern, is situate at the westerly end of the premises, being 375 feet from the near boundary of the portion taken. The new highway, swinging in a slow curve to the south over the pre-empted parcel, is banked away from the remainder of claimant’s premises, leaving a four and a half foot grade between the highway and claimant’s abutting land. The highway over the land appropriated is part of a larger traffic control improvement which diverts through traffic from former Route 28 along which claimant’s property lies. We believe the award is based on factors which should not have been considered in the evaluation of the damage to claimant’s property as a result of the appropriation, i. e., dimunition in the market value of the remaining portion as a result of the whole improvement and consequent diversion of traffic. For this reason we regard the award as excessive. We find (a) that the value of the portion of claimant’s land that was appropriated was $200; (b) that by reason of the appropriation and the use of the portion taken, the remaining land has been damaged in the amount of $550; (c) that by reason of the appropriation and the use of the portion taken, the buildings located on the remaining land have suffered no consequential damage. The judgment should be modified on the law and facts to award judgment in favor of claimant for $750 with interest from the 2d day "of February, 1948, except for the period from August 2, 1948, to August 24, 1948, and as so modified, the judgment should be affirmed, without costs. All concur. (Appeal from a judgment for claimant on a claim against the State for the permanent appropriation of realty for highway purposes.) Present — Taylor, P. J., Vaughan, Kimball, Piper and Wheeler, JJ. [198 Mise. 387.]  