
    In the Matter of the Application of Bronx Parkway Commission, Respondent, to Acquire Title to Lands of William F. Kraft and Another, Individually and as Executors, etc., of Frederick W. Kraft, Deceased, Appellants. City of Yonkers and Another, Respondents.
   Order of Special Term setting aside the report of the commissioners of appraisal and directing a rehearing before new commissioners reversed, upon the law and the facts, with ten dollars costs and disbursements, and motion to confirm the report of the commissioners granted, with costs. The order is appealable. (Matter of Manhattan Railway Co. v. Stuyvesant, 126 App. Div. 848, 849.) The award was not based upon an erroneous theory. The testimony regarding the availability of the land for industrial or commercial purposes was permissible. (Matter of Bronx Parkway Commission [Ferris], 206 App. Div. 526; Matter of Bronx Parkway Commission [Farley], 192 id. 412.) Our former decision in this ease was based principally upon the fact that the experts capitalized a loss of profits which might possibly be earned by the establishment of a hypothetical ice plant. We did not intend to hold that “ all available uses and purposes ” to which vacant land might reasonably be adapted should not be considered in determining market value; in fact, we expressly stated to the contrary. [See 191 App. Div. 212.] We are of the opinion that the award made by the commissioners was fairly within the testimony regarding valuation, and that it should not have been set aside as excessive. Kelly, P. J., Jaycox, Manning, Kelby and Kapper, JJ., concur.  