
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, etc., to the Lands, etc., Required for the Widening of Roebling Street Twenty Feet on its Westerly Side, from Bridge Plaza at South Fourth Street to Union Avenue, in the Thirteenth and Fourteenth Wards, Borough of Brooklyn, City of New York. Giovanni Merola and Emilia Merola, Appellants.
    Second Department,
    March 3, 1911.
    Eminent domain — street widening, city of New York—damages to portion not taken — inability to use lands for tenement house purposes.
    A claimant in a street widening proceeding in the city of New York cannot attack an award made by commissioners on the theory that the law prevents the use oí his premises for tenement house purposes. This, because while the claimant is entitled to consequential damages to the portion of his lauds not taken, the commissioners may find that they are more valuable for business purposes than if used for tenement house purposes, and may also take into consideration the fact that the widening of the street by increasing the easements in light and air has made the property more desirable.
    Reargument of an appeal by Giovanni Merola and another from an ordei of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of April, 1910, confirming the report of commissioners of estimate and assessment herein.
    
      
      Hugo Hirsh [Herbert Andrews with him on the brief], for the appellants.
    
      Edward Riegelnann [E. Lyndsey Bourhe and Archibald R. Watson with him on the brief], for the respondent.
   Woodward, J.:

Under thoroughly well-established rules governing appeals in matters of this character, the appellant, who seeks an increase of the award, has failed to establish a right to such relief. The commissioners viewed the premises, took testimony, and made their award in the manner sanctioned by law and usage. The award is something over the figures made by the expert for the city of New York, and less than the original figures given by the expert for the appellant, though only in a degree which might be expected. The damages fixed by the city’s expert were $2,673.50 less than those figured by the expert for the claimant under his original estimate, but these figures were changed upon the theory that in some manner the Tenement House Law interfered with the use of the premises f.or tenement house purposes, and that there was a constructive destruction of the tenement house which concededly remains upon the property. There was no evidence that the premises, were specially adapted to the purposes of a tenement house; no evidence that any one ever intended to use them for this purpose, except that of two buildings upon the property, one of which was destroyed, one was a tenement house. There was no evidence from which it could be determined that the property used as tenement house property would be more valuable than it would be if its character was entirely changed, and it is a fact commonly known that in many parts of the city land is more valuable with the old buildings demolished than with them standing and in use as tenement houses. The commissioners and the experts had a right to consider the property as a whole; it was their duty to give the full value of the land actually taken, with any consequential damages which might result to that which remained (Newman v. Metropolitan Elevated R. Co., 118 N. Y. 618, 623), and in arriving at the consequential . damages they had a right to determine what was the actual value of the land and buildings after the twenty feet frontage had been taken away in widening Roebling street in front of the premises. The fact that the premises could not be used for tenement purposes if this was a fact did not prevent them from reaching the conclusion that they might be used for stores, and that their value for business purposes would be greater than for the purposes of a tenement house, in which event the damages would, of course, be less. In determining the element of consequential damages the commissioners were justified in taking into consideration the fact that the street had been increased in width twenty feet, thus increasing the easement of light and air, and the general desirability of the property along the street. (Newman v. Metropolitan Elevated R. Co., supra.) The rule attempted to be asserted by the appellant is too fanciful for practical results, and would only tend to add uncertainty in a situation which already presents enough of complication.

The order appealed from should be affirmed, with costs.

Jenks P. J., Hirsohberg, Thomas and Rich, JJ., concurred.

Order affirmed on reargument, with ten dollars costs and disbursements.  