First Department, July, 1921. [Vol. 197 issue of first refunding bonds, a copy of which is thereto attached and marked exhibit 'E.'" The letter exhibit "E" contains the following statement: "A sinking fund has been created under the terms of the mortgage whereby the company pays to the trustee sums not less than $25,000 a year. These sums are to be invested by the trustee in the first and refunding fives if purchasable at or below 105 and interest. If not obtainable by purchase at or below 105 and interest, bonds are to be drawn by lot at that figure. Bonds so purchased or drawn are to be kept alive in the sinking fund and the interest thereon added to the annual amount devoted to the retirement of the bonds." (Italics ours.) Here we have a declaration on the part of the president of the defendant company at the time when the bonds were to be negotiated that the bonds so purchased are "to be kept alive in the sinking fund" and that the "retirement" of the bonds simply referred to a retirement which removed them from sale to outsiders. The submission also sets forth a schedule showing the dates and amounts of cash payments which have been made by the Portland Railway Company and its successor to the trustee on account of the said sinking fund commencing on November 1, 1907, to October 28, 1920, a period of thirteen years. The payments therein referred to, except one on October 28, 1920, are the fixed sums stipulated together with the additional sums equal to the specified percentage of bonds issued in excess of $5,982,000 as set forth in article 4 of the trust mortgage. It is admitted in the submission that "no question was raised by the company or by any party of the liability of the company to include bonds in the sinking fund in calculating the amounts due to the sinking fund based upon the specified percentages until shortly before November 1, 1920, and until shortly before November 1, 1920, the percentages have been calculated and the amounts of the payments arrived at by treating bonds purchased with sinking fund moneys and held in the sinking fund, as bonds outstanding." We have thus a practical construction by the defendants themselves for a period of thirteen years which accords with the claim of the plaintiff. The practical construction of the parties to an agreement for many years has been recognized App. Div. 431] First Department, July, 1921. by the courts as a valuable factor in construing ambiguous clauses and agreements. (French v. Carhart, 1 N. Y. 96; City of New York v. New York City R. Co., 193 id. 543; Syms v. Mayor, etc., 105 id. 153.) We think sufficient has been indicated to warrant the conclusion that all bonds purchased with sinking fund moneys and forming part of the sinking fund should be included in calculating the amount to be paid by the defendants to the plaintiff as trustee. There must be judgment for the plaintiff for the sum of $25,410 with interest thereon from November 1, 1920, at the rate of six per cent. CLARKE, P. J., DOWLING, SMITH and PAGE, JJ., concur. Judgment ordered for plaintiff for $25,410, with interest from November 1, 1920, at six per cent. Settle order on notice. In the Matter of the Application of THE CITY OF NEW YORK, Appellant, Respondent, Relative to Acquiring Title, etc., to the Lands, etc., Required for the Opening and Extending of Inwood Hill Park, in the Borough of Manhattan, City of New York, etc. INWOOD DOCK, WAREHOUSE & MARKETS Co., INC., and Others, Respondents, Appellants. First Department, July 1, 1921. Eminent domain acquisition of property by city of New York for park purposes damages determination of value of property consideration of adaptability of property to purposes for which it could most profitably be used - damages cannot be based upon speculative and fanciful plan of improvement reception of evidence of such plan not prejudicial where ignored by court court governed by same rules as were formerly applied to commissioners in condemnation — award to city based on testimony of experts called by corporation counsel. In estimating the reasonable market value of property taken by the city of New York for park purposes, the owner is entitled to have considered the adaptability of the land to the purposes for which it could most First Department, July, 1921. [Vol. 197 profitably be used, but is not entitled to have his damages based upon a plan of improvement that is speculative and fanciful. But the reception of evidence, as to a speculative and fanciful plan for the construction of apartment houses in a lonely and inaccessible place, which was disregarded by the court, cannot be considered prejudicial, where it does not appear that it influenced the decision, and that the erroneous theory was adopted by the court, and resulted in an award which is an injustice to one party or the other. The mere fact that the court did not accept the testimony of the city's experts as to value does not show that it 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. Where an award was made to the city for land owned by it, based upon the testimony of experts called by the corporation counsel, and no evidence to the contrary was offered, the city cannot complain upon the ground that the court did not disregard said testimony and make awards to it on the same basis as to others. CROSS-APPEALS from a first partial and separate final decree of the Supreme Court, entered in the office of the clerk of the county of New York on the 22d day of June, 1920, upon the decision of the court rendered after a trial at the New York Special Term in condemnation proceedings. L. Howell LaMotte of counsel [Joel J. Squier with him on the brief; John P. O'Brien, Corporation Counsel], for the City of New York. Martin Conboy of counsel [Harry B. Chambers with him on the brief; Griggs, Baldwin & Baldwin and Charles C. Lockwood, attorneys], for the claimants. PAGE, J.: The city of New York instituted proceedings pursuant to a resolution of the board of estimate and apportionment adopted July 27, 1916, for the purpose of acquiring title to the property situated on the west slope of Inwood Hill for a park. The title to the property acquired in this proceeding vested in the city of New York on December 15, 1917, by virtue of a resolution of the board of estimate and apportionment. The first partial and separate final decree embracing the damage parcels involved in this appeal was made pursuant App. Div. 431] First Department, July, 1921. to a resolution of the board of estimate adopted on April 16, 1920. Inwood Hill is bounded on the south by Dyckman street, on the west by the Hudson river, on the north by the Harlem River ship canal, and on the east by the Dyckman flats, and is formed by two ridges which are separated by a deep ravine extending south from the ship canal. The property acquired in this proceeding is situated on the west slope of the westerly ridge and extends from Dyckman street north to the ship canal. The only access to the westerly ridge is by way of the lower Bolton road, a dirt road varying in width from eighteen to twenty feet, which runs northerly from Dyckman street near the right of way of the New York Central and Hudson River railroad to the property of the Inwood Dock, Warehouse & Markets Co., Inc., which is the most northerly property taken in this proceeding. There is no access to the property by way of any of the streets running west from Broadway north of Dyckman street. The distance between the westerly and easterly boundaries of the property acquired averages 600 feet, and there is a rise in elevation which varies from 125 to 180 feet in a distance of 600 feet. Inwood Hill many years ago was used for residential purposes. During the past thirty years it has gradually fallen into disuse for that purpose and is now used for institutions, so far as any use is made of it. The House of Mercy, an institution to which fallen women are committed by the courts, accommodating 108 inmates, was built twenty or thirty years ago. In 1903 the New York Magdalen Home, now known as Inwood House, purchased property and erected a large building which accommodates 110 inmates, to which fallen women are also committed by the courts. An old building located on Bolton road was converted into a home for consumptives and is known as the House of Rest for Consumptives. The means of transit are the subway which has a station at Dyckman street distant 3,200 feet from the entrance of the lower Bolton road, and the Broadway surface road, 1,520 feet away. The distance along the lower Bolton road to the property of the Inwood Dock, Warehouse & Markets APP. DIV.- VOL. CXCVII. 28 First Department, July, 1921. [Vol. 197 Co., Inc., is about 2,500 feet. These transit facilities have been in existence since 1906, in which year the subway was extended to Dyckman street. No additional facilities for travel have been furnished to this neighborhood since 1906, nor have there been any improvements made on Inwood hill in the past thirty or forty years except the building of the institutions above mentioned. Since the subway was opened in 1906 about fifteen per cent of the available property in the neighborhood and within easy access to the subway station has been improved. While the claimants separately own the damage parcels involved in this appeal and they appear by different attorneys, they united for the purpose of presenting a plan of improvement which involved the four properties owned by them and seven or eight other parcels owned by seven or eight different owners. This plan of improvement was prepared by a landscape architect, Mr. Leavitt, and an engineer, Mr. Wheeler. It involved the construction, regulating, grading and paving of two streets, with sewer systems, which would run through and appropriate parts of the property of the other owners, who had not signified their assent to the scheme and yet were to be saddled with a goodly portion of the expense. On these streets were to be erected large and handsome apartment houses, which could be rented at twelve dollars per room per month, thus returning a handsome revenue to the owners. This landscape artist and engineer must have received their inspiration from reading "The Gilded Age," for their idea savors very much of Colonel Sellers' plan to cut up a Mississippi plantation into corner lots and sell them at the prevailing prices for such lots on Broadway, New York, and thus realize millions. The fact that there would be no tenants for the apartments in this lonely inaccessible spot did not trouble the landscape architect and the claimants' experts any more than the lack of purchasers troubled the Colonel. The plan was altogether too speculative and fanciful to merit the slightest consideration, and the learned justice at Special Term treated it with the degree of respect it deserved by ignoring it. In estimating the reasonable market value of the property at the time it is acquired in proceedings of this kind, the |