App. Div. 431] owner is entitled to have considered the adaptability of the land to the purposes for which it could most profitably be used. But it is to be considered only so far as the public would have considered it if the land had been offered for sale. What the owner is entitled to is the value of the property taken, and that is what it is fairly believed a purchaser in fair market conditions would have given for it in fact; what a purchaser, who is not compelled to buy, would pay under ordinary circumstances to a seller who is not compelled to sell. (People ex rel. Brown v. Purdy, 186 App. Div. 54, 57; affd., 226 N. Y. 635.) But he is not entitled to have his damages based upon a plan of improvement that is speculative and fanciful. (Matter of City of New York [Blackwell's Island Bridge], 118 App. Div. 274; Matter of Bronx Parkway Commission, 191 id. 212; People ex rel. Strong v. Hart, 216 N. Y. 517; New York v. Sage, 239 U. S. 57.) The city objected to the reception of the evidence, and moved to strike it out and urges its exception to the rulings of the court as reversible error. How the reception of evidence that was held to present a speculative and fanciful plan and was disregarded by the justice who tried the case can be considered prejudicial is hard to comprehend. It must appear that it has influenced the decision, that the erroneous theory was adopted by the justice, and resulted in an award which is an injustice to one party or the other. (Matter of City of New York [Croton River Dam], 129 App. Div. 707, 710; Silver Creek & Dunkirk R. Co. v. Baker, 18 N. Y. Supp. 331.) The mere fact that the court did not accept the testimony of the city's experts as to value does not show that he was influenced by the fanciful and speculative plan presented by the claimants. The court in these proceedings is governed by the same rules as were applied to commissioners in condemnation prior to the adoption of the amendment to the Constitution and the resulting legislation. (See Const. [1913] art. 1, §7; Laws of 1915, chap. 606, adding to Greater N. Y. Charter [Laws of 1901, chap. 466], chap. 17, tit. 4, as amd.) The court views the property, and as was said in a recent case: "The commissioners, of course, are expected to consider the evidence. But their function is not merely to pass upon the credibility of witnesses, especially experts produced by the parties, or to decide which set of such expert witnesses reveals itself as First Department, July, 1921. [Vol. 197 more correct in estimate, and then slavishly adhere to that set. The commissioners are to exercise their own judgment, and they may arrive at their conclusion in disregard of the figures of any or all experts. They are untrammeled by technical rules of evidence and unrestricted as to their sources of information. * * * They shall be guided by their own judgment and experience, rather than by the opinions of witnesses."" (Matter of Bronx Parkway Commission, 192 App. Div. 412, 418.) The city owns a part of the property that is involved in this proceeding. The corporation counsel called experts who testified to the value, and as the city was interested both as petitioner and claimant, of course no evidence to the contrary was offered; and the learned justice made the award in accordance with that testimony. The city now complains that he did not disregard that testimony and make awards to it on the same basis that he did to others. The learned justice may very well have assumed that the city was asking only the usable value of the property to it, and that the testimony produced by it showed the true value at which its representatives appraised the property. It may be of course that it was willing to have a value lower than the true one placed on its property if it thereby could secure a lower valuation than the true one on the property of others and thus recoup the city for the loss sustained on its own property. We, however, cannot indulge in such an assumption. We find no error in the allowance to the city of the full amount claimed by it as its damage. We do not find that the court proceeded on an erroneous theory or that the awards are excessive. The judgment will, therefore, be affirmed, without costs to any of the parties. CLARKE, P. J., LAUGHLIN, SMITH and MERRELL, JJ., concur. Decree affirmed, without costs. First Department, July, 1921. App. Div. 437] THE PEOPLE OF THE STATE OF NEW YORK ex rel. EMPIRE · MORTGAGE COMPANY, Appellant, v. JACOB A. CANTOR and Others, Respondents. First Department, July 1, 1921. Taxation certiorari to review assessments on parcel of real estate in city of New York- assessments invalid basis of valuation of tracts subdivided into plots in undeveloped section unwarranted valuation placed on property by disinterested witnesses adopted. In a certiorari proceeding instituted to review assessments for the purpose of taxation on two tracts, constituting one parcel of real estate in the city of New York, an assessment of practically fifty per cent above the cost price will be set aside as excessive, where in making the assessment no consideration was given to the sales price of the property or to the fact that it had been on the market for years without an offer, and where it appeared that there had been no increase in the value of the tracts since 1910, and that the property was on a side hill, in an undeveloped section of the city, and for which assessment justification is sought in speculative valuations based upon fanciful development and in the sale of a plot differently situated. The valuation placed on the parcels by witnesses of experience and without interest in the matter and whose individual estimates approximated each other should be adopted as the valuation for the assessment. APPEAL by the relator, Empire Mortgage Company, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of October, 1920, confirming after a trial assessments for taxation upon real property and dismissing a writ of certiorari. Henry De Forest Baldwin of counsel [Franklin Grady with him on the brief; Lord, Day & Lord, attorneys], for the appellant. William H. King of counsel [Charles E. Lalanne with him on the brief; John P. O'Brien, Corporation Counsel, attorney], for the respondents. PAGE, J.: This is a certiorari proceeding instituted to review assessments for the purposes of taxation for the year 1918 on parcels of improved and unimproved real property situated in the borough of Manhattan consisting of fifteen separately First Department, July, 1921. [Vol. 197 assessed lots lying in four blocks as shown on the tax maps, but all comprised within two tracts which have generally been referred to as the Billings property and the Hays property. The two tracts adjoin and constitute one parcel except as divided by streets. With the exception of a parcel west of Riverside Drive lying far below that thoroughfare, the property is bounded on the west by Riverside Drive and on the east by Broadway. The southern boundary is approximately 280 feet north of a line extended from One Hundred and Ninetysecond street and the northerly line is from 208 to 250 feet north of Corbin place. The property lying between Riverside Drive and Broadway, with the exception of lot 646 in block 2180, comprises a steep rocky ledge on top of which is some level ground that has been utilized for buildings. On the Billings property there is the Mansion House or Tryon Tower, together with a swimming pool, a garage, a stable which was rented for $6,500 per year, the lodge which rented for $420 per year, and a stone building described as Libbey Castle which rented for $3,000 per year. On the Hays property is the Abbey Inn, a frame building rented for $2,500 per year and a cottage and greenhouses rented for $650 per year, and a cottage and stable on the west side of Broadway rented at $300 per year. These properties were bought by John D. Rockefeller, Jr., to be presented to the city for a park in January, 1917. He paid for the Billings property $750,000 and for the Hays property $500,000. The property was assessed for taxation, the Billings property at $1,276,000, and the Hays property at $573,520, a total of $1,849,520. These properties had been on the market for a number of years with no offers for the Billings property and an offer of $400,000 for the Hays property. An employee of Mr. Joseph P. Day testified that the Billings property had been placed in his hands for sale, that he had tried for more than a year to sell it, sending from 100 to 150 letters to men of wealth, trying to interest them, but had received no offers. He appraised the property for Mr. Billings as of October 1, 1917, at $740,391 and he did not think the property had increased in value. All of the experts agreed that there had been no increase in the value of these properties since 1910. The city's experts testified that they gave no con App. Div. 437] First Department, July, 1921. sideration either to the sales price, or to the fact that the property had been on the market for sale for a number of years without an offer, because it was offered as a tract whereas it should have been offered in plots. They admitted that lots could not be sold, but stated that plots suitable for the erection of villas or high class apartments could have been. The lack of transportation facilities did not affect their judgment of the value of this property for the purpose of such a development, for the persons interested could run bus lines even if the traction companies would not extend their lines. That the property was largely on a side hill and that locations for houses would have to be blasted out leaving a precipitous cliff in the rear was rather an advantage because you could train morning glory vines over the rocks, thus giving the effect of living in a bower. We have had occasion to comment on these iridescent dreams as a substitute for present value in the case of Matter of City of New York (Inwood Hill Park) (197 App. Div. 431), decided herewith. The city in that case vigorously opposed the acceptance of such a basis for valuation and urged us to reverse the court at Special Term, although the justice had dismissed the whole plan as speculative and fanciful, for fear that his mind might unconsciously have been influenced by the valuations given. Yet in this proceeding we find the city attempting to bolster up an excessive valuation with exactly the same kind of evidence. It is even more absurd in this case than in the Inwood Hill Park case, for that was a proceeding in condemnation in which the owners were entitled to receive the highest usable value of their property which was being taken from them by eminent domain; while this is an assessment for the purpose of annual taxation. If the prophetic vision of the city's witness is justified by time, then the city can adjust its valuations for those years upon the conditions as they then exist. Furthermore, this property is less accessible to transportation facilities than was the Inwood Hill Park plot. Justification is sought for these valuations in the sales of the Bennett plot to the south. But the Bennett property was very differently situated. It was within a few minutes' walk of the One Hundred and Ninety-first street station of the subway, and directly along the line of Broadway, with cross |