New-York tribune., 1921-10-30

VIII allo" tne iancIord an increase "A
30 per cent of the former rentals .ss
costs, and as so modified affirmed x;.s
SIS costs to the appellant. in each cas-. =
Owner Proved His Case
Justice Finch, who did not agree w;.u
the findings of his associates Juss;ss
Delehanty and BLUR, wrote: ss
"The trial court has found as f...
the reasonable rental value Of 49,
apartment at the time in question srs
there is evidence to sustain the ind;ns 7
Two witnesses of large experience p
the real estate field, and both of whora
were particularly familiar with tbs
property IN question, one having besn
in charge of the collection of ren,s
and management of this particular
property for three years under a me-
owner Of record and the other hay;rn
managed the property directly acros.
the street, testified for the plaintiS
and both clearly distinguished betwesn
a fair market rental value as of n.
present time for these promises and .
value at the same time due to ths
shortage of housing on account of III.
war conditions.
Joseph Nassoit, in fixing the renta,
value of these premises at S28 a room
testified: 4 consider this is the fa;,
and reasonable value; what the anars-
ments will bring in according to sun.
ply and demand-in poor times thsy
have to take less, in good times they
can get more-but these figures I flo.
ured on what the apartments are worth
reasonably @. Regardless of ths
housing emergency we have now? A.
4 didn't take that into consideration.
If had I would have made them much
higher"
James E. Taylor, the other witnes.
testified that the fair market value wss
S35 a room.
'Q.-Seven times S35 would be s2s5:
cording to your judgment, that he ought
to pay s245 month? A.~Ives asked asked
what l considered a fair market value
of the property to-day, not asked what
any tenant ought to pay
Zone expert thus gave the reasonable
/ market value at the time the property
was affected by the public use at sl9s
a month and the other at S245 and the
court fixed it at $3.50.
at is thus seen that the court adopt
ed what it is submitted is the true rule
which should be adopted in fixing such
rental value-namely, a reasonable re-
turn upon the fair market value of the
property as of the time when such prop
erty is affected with the public use.
This is the rule which has been applied
to many different classes of property
when such property has~become perma.
nently affected with a public use will
cox VS.. Consol. Gas Co., PIP U. S., 49,;
Smyth vs.. Ames, 169 U. S., 466; People
ex rel. Kings County L. Co. VS.. Wilcox,
210 N. Y, 479; Minnesota Rate Cases,
230 u. S., 1922, and there would seem
to be no distinction between such O
case and where private property has
only been temporarily, instead of per-
mamently, affected with such use, as Ia
the case at bar.
"The trial court reached it's conclu
sion with the help Of the testimony Of
expert witnesses, which is one method
of arriving at the result. A majority
of this court has set aside the finding
of the trial court and has reached itl
conclusion by making a finding as to
the value of the land and building
taken together and basing return
upon this. If this is to be the basis,
then the authorities hold that the
building should be valued separately
from the land at the cost of construc-
tion at the time the rental is to be
fixed less accrued depreciation, and the
value so found should be added to the
value of the land (Smyth VS.. Ames
169 U. s., 466; People ex rel. Kings
County L. Co. VS.. Wilcox, 210 N. Y,
479) There is no evidence in this rec
ord showing said separate value of the
building at such time.
For these reasons | am constrained
to differ from the result reached by my
colleagues and vote to affirm"