
    Peter Kiewit Sons’ Co., Respondent, v. State of New York, Appellant.
    (Claim No. 42404.)
    Argued November 27, 1972;
    decided December 29, 1972.
    
      
      Louis J. Lefkowitz, Attorney-General (J. Lawson Brown and Ruth Kessler Toch of counsel), for appellant.
    
      Homer E. Peters and Livingston T. Coulter for respondent.
   Order affirmed, with costs, in the following memorandum: The appeal presents no dispute as to the rule of law under which a condemnee is denied recovery for enhancement in value attributable to the appropriation itself (see, e.g., United States v. Miller, 317 U. S. 369); but both courts below, in determining the purely factual issues presented, were warranted in finding no basis in the evidence for application of the rule.

Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Gibson. Judges Breitel and Jasen dissent and vote to reverse and grant a new trial on the dissenting opinion at the Appellate Division.  