
    In the Matter of the Application of Louisa B. Schneider, Respondent, for Payment of Award Made for Damage No. 2D on the Damage Map in the Report of the Commissioners of Estimate and Assessment in Proceedings to Open East One Hundred and Fifty-seventh Street from Brook Avenue to German Place and from German Place to St. Ann’s Avenue, in the Borough of The Bronx, City of New York. David Peltz and David Levinson, Appellants; The City of New York, Respondent.
    First Department,
    January 21, 1910.
    Eminent domain — street opening — when award should be nominal — repayment of unauthorized award.
    Where a municipality acquires the fee oí a street which is already incumbered by rights of- way created by a prior owner in favor of abutting proprietors, so ■ that the present owner’has nothing,but a naked fee/he is entitled to a ¡nominal award only. •
    Abutting owners who already have rights of way over such street. are not entitled to a substantial award when the bed of the street is taken by a •' municipality for street purposes, for their easements'are not destroyed but are perpetuated. -
    Where street opening commissioners have made a substantial award on taking the fee of a street, although neither the owner thereof nor abutting owners are " entitled to more than nominal damages, and the assessment extends beyond .the abutting property, the award should be proportionately repaid ¡to those, who have , already paid tlicir assessments, and the assessments of those who have-not paid should he reduced-in -proportion.
    
      Appeal by David Peltz and David Levinson, claimants, from an order of the Supreme Court, made at the New Yorlc Special Term and entered in the office of .the clerk of the county of New York on the 2d day of August, 1909, confirming the report of a referee.
    
      Samuel I Frankenstein, for the appellant Levinson.
    
      Harry G. Smith, for the appellant Peltz.
    
      Merle 1. St. John, for the respondent Schneider.
    
      John J. Kearney, for the respondent City of New York.
   Scott, J.:

This appeal presents the same embarrassing question which confronted the Court of Appeals in Matter of City of New York (196 N. Y. 286). A large sum of money has been awarded to unknown owners,” and there is no one who appears to be entitled to be paid more than a nominal sum out of it. The proceeding is one to open and acquire title to One Hundred and Fifty-seventh street from Brook avenue to German Place and from German Place to St. Ann’s avenue in the city of New York, borough of The Bronx. The award in controversy is for a parcel of land known in the proceeding as Damage Parcel No. 2D, which consists of a strip of land now constituting a part of the bed of One Hundred and Fifty-seventh street being of a widtli equal to one-lialf the width of the street and extending westerly 100 feet from St. Ann’s avenue. On July 23, 1900, the date on which title vested in the city of New York, one David Peltz was the owner in fee of this strip of land, but owing to conveyances made by his predecessors in title wherein the abutting property was described by and bounded upon One Hundred and Fifty-seventh street, then laid down and located on the city map, but not legally acquired and opened, his fee was so incumbered with easements in favor of the abutting property so conveyed, that there was left to him nothing but a naked, barren fee for which no more than a nominal award should have been made. In their first report the commissioners did make a nominal award for the bed of the street, but the court at Special .Term returned the report to them with what amounted to instructions to make a substantial award. This they did, but as to the strip of land involved in this appeal they made the award to “ Unknown owners.” A reference was ordered to ascertain to wliom the award should "be paid. The referee" reported, and the "court by confirming the report has held, that, the whole award should be paid to the respondent Louisa B. Schneider, who, at the date on, which title vested in the.city, was the owner of the lot on the northwest corner" of St. Ann’s avenue and One'Hundred and Fifty-seventh street abutting ripon the strip of land,.part of One Hundred and Fifty-seventh street, above described. It is now definitely settled, as indeed has often been held before, that an abutting owner under such circumstances as exist in this case, is not entitled to any" award for his private easements in the.land designated for a street, because when the land is taken for street purposes, his easements are not destroyed, but perpetuated! (Matter of City of New York, supra.) It does not even" appear in this case, that the respondent Schneider ever paid the assessment. We consider it quite clear, therefore, that neither the owner of the bed of the street nor the owner of the abutting property was entitled to a substantial award, and we are unwilling, as was the Court of Appeals in Matter of City of New York, “to take part in the division of a" fund to which none of the claimants are justly or equitably entitled so far as now appears.” ' The qriestion as to what disposition should be. made of it is not free from difficulty, and certainly cannot be finally determined upon the record now before us. We are advised by that record that- the assessment, including this award, has been levied "and to some extent collected. How large is the assessment area we are not advised, but Wfe may infer that it "extends beyond the property abutting upon the Street, because the assessment upon the lot formerly owned by respondent Schneider is little more than, half the sum awarded to the unknown owner of that portion of the street upon which it abuts. Of bourse the award under consideration went to swell, the general assessment, and affected pro tanto the whole assessment' area. The equitable course. to pursue would, appear to be to return a proportionate amount of the award’ to each person who has paid any part of the. assessment, and to reduce by a proportionate amount those assessments which yet remained unpaid. To this "end the' order appealed from will be-reversed,‘and the motion to confirm the referee’s report denied, and a referee appointed to take proof as to those who have paid the assessment, and the amount paid by each, and of the assessments remaining unpaid, with instructions to report to this court at Special Term in order that the fund may be equally distributed.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, motion to confirm report denied, and reference ordered as directed in opinion. Settle order on notice.  