
    Sun Oil Company, Respondent, v. State of New York, Appellant.
    (Claim No. 40480.)
   Judgment unanimously affirmed, with costs. Memorandum: The trial court found that by reason of its location in a heavy traffic area the highest and best use of the subject property was the use which was being made of it at the time of appropriation, namely, for the operation of a gasoline service station. The trial court then allowed a 25% increase in the market value in order to “take adequate note of a restricted use”. The trial court considered the taking as one involving the loss of a going business, which was in fact the restricted use as a gasoline station, and the market value should have been measured according to that particular use (St. Agnes Cemetery v. State of New York, 3 N Y 2d 37, 41). There is, therefore, no basis for the 25% increment which was computed at $6,250. The real property was vacant land at the date of purchase in 1953 for which the claimant paid $25,000. The record amply supports an increase in market value from 1953 to 1961 of at least 25%. The trial court erred in failing to include in the award any increase in market value for the eight-year period. We affirm the amount of the award, but, in doing so, we strike from it the 25% increment for restricted use and substitute in its place the 25% increase in market value. (Appeal from judgment of Court of Claims for claimant for permanent appropriation of realty.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.  