In the Matter of the Application of The City of New York Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired to an Easement Title for the Purpose of a Waterway to the Uplands within the United States Bulkhead Lines of Newtown Creek from Meeker Avenue and Laurel Hill Boulevard to Its Southerly Terminus at a Point about 50 Feet North of Metropolitan Avenue, and to the Uplands within the United States Bulkhead Lines of Maspeth Creek from Newtown Creek to Its Easterly Terminus at a Point about 500 Feet East of Berlin Avenue, Boroughs of Brooklyn and Queens, as Now Laid Out upon the Map or Plan of The City of New York; in Accordance with a Resolution of the Board of Estimate and Apportionment Adopted on the 24th Day of October, 1930. The City of New York, Appellant, Respondent; The Cord Meyer Company, Respondent, Appellant

In the Matter of the Application of The City of New York Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired to an Easement Title for the Purpose of a Waterway to the Uplands within the United States Bulkhead Lines of Newtown Creek from Meeker Avenue and Laurel Hill Boulevard to Its Southerly Terminus at a Point about 50 Feet North of Metropolitan Avenue, and to the Uplands within the United States Bulkhead Lines of Maspeth Creek from Newtown Creek to Its Easterly Terminus at a Point about 500 Feet East of Berlin Avenue, Boroughs of Brooklyn and Queens, as Now Laid Out upon the Map or Plan of The City of New York; in Accordance with a Resolution of the Board of Estimate and Apportionment Adopted on the 24th Day of October, 1930. The City of New York, Appellant, Respondent; The Cord Meyer Company, Respondent, Appellant. [MAJORITY] Cross-appeals by claimant and the City of New York from a final decree in a condemnation proceeding in so far as it concerns an award of $32,000 for Damage Parcel 11. Final decree modified by increasing the final award for Damage Parcel 11, as of June 15, 1923, from $32,000 to $46,830, and, as .so modified, the decree, in so far as appealed from, is unanimously affirmed, with costs to the appellant The Cord Meyer Company, (a) The State grants of land under water were valid, (b) The award for the land comprising Damage Parcel 11 was inadequate. The award, as increased and fixed by this court, represents the difference between the value of the bulkhead premises owned by the claimant before the taking and the value of bulkheaded premises remaining in the claimant after the taking, (c) No allowance has been made for impairment of access due to the failure of the Federal Government to remove the Damage Parcel. It may be removed at any time by the Federal Government and meanwhile is available for use by the claimant without any expense. Its disposition and rights relating thereto are no proper present concern in this proceeding. Lazansky, P. J., Carswell, Johnston and Close, JJ., concur; Hagarty, J., concurs in the result, with the following memorandum: The appeal by the City is from so much of the decree as contains and makes an award, involving the right of the claimant to any award. On that appeal, the decree, in so far as appealed from, should be affirmed, without costs. The appeal by The Cord Meyer Company is based on the inadequacy of the award. On that appeal the decree should be modified by increasing the award as of June 15,1923, from $32,000 to $46,830, and, as so modified, the decree in so far as appealed from, should be affirmed, with costs to the appellant. An award of less than $15,690, or at the rate of seventy-five cents a square foot for the taking of the land comprising the damage parcel, is inadequate. In addition, an allowance should be made of $31,140, the undisputed cost of erecting a new bulkhead corresponding to the one taken. Such allowance, in the light of the peculiar circumstances presented in this case, should be awarded in lieu of the much higher structural value of the bulkhead taken.