
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title, etc., to Lands, etc., for the Opening of Westchester Avenue, etc., from Bronx River to Main Street, in the Twenty-fourth Ward, Borough of The Bronx, City of New York. Francis A. Watson and Others, as Executors and Trustees, etc., of William Watson, Deceased, and Others, Respondents.
    First Department,
    June 19, 1908.
    Municipal corporation — eminent domain — street opening, city of New York — amendment of proceedings — assessment of damage.
    Under section 974 of the Greater Hew York charter, empowering the court to amend street opening proceedings, it may authorize an amendment relocating the lines of a proposed street. Commissioners already appointed in the proceeding may appraise the damage for taking the new land included by the relocation without reappointment and without filing a new oath- of office, especially where the owner of the lands appears in the proceeding both before and after the amendment.
    The assessment of damages in such a proceeding should be on an acreage valuation, not a city lot valuation, where the lands of the abutting owner extend back hundreds of feet from the highway and no lots are destroyed but the front only cut off.
    Though such abutting owner who has title to the center of the highway is entitled to substantial damage for the taking of the fee of the highway, the requirement of substantial damages is fulfilled by the awarding of a comparatively small sum and §100 per city lot is grossly excessive and will not be confirmed.
    Appeal by the petitioner, The City of Hew York, from an order of the Supreme Court, made at the Kings County Special-Term and entered in the office of the clerk of the county of Kings on the 4th day of April, 1906, as amended mono pro tuno by an order entered in said clerk’s office on the 1st day of May, 1906, as amended and resettled by an order entered in said clerk’s office on the 20th day of Hovember, 1907, in the office of the clerk of the county of Hew York on the 22d day of Hovember, 1907, and in the office of the clerk of the county of Westchester on the 23d' day of Hovember, 1907, in so far as the same confirms the report of the commissioners of estimate and assessment herein, as to awards made for damage parcels Nos. 1, 2A, 2B, 4, 5, 6, 127, 127A, 127B, 1270 and 127E.
    
      Francis K. Pendleton, Corporation Counsel [Thomas C. Blake, Counsel], for the appellant.
    
      James J. Allen, for the respondents Watson and others, as trustees.
    
      Philip F. Connell, for the respondents Adee and others.
    
      Stephen O. Lockwood, for the respondent Episcopal Church cf. St. Peters.
   Houghton, J.:

In February, 1901, the board of public improvements of the city of New York adopted a resolution authorizing the institution of proceedings in behalf of the city for the opening and extending of Westchester avenue in the annexed district some miles in length, and a map was filed in accordance with the law.

Commissioners of estimate and assessment were duly appointed and qualified on the 31st day of December of that year, and they began the publication of the required notice on the 1st day of February, 1902. While the commissioners were considering claims the board of estimate and apportionment, the then legally constituted authority, made certain changes in the location and the laying out of Westchester avenue as it was formerly laid out, and the maps showing these changes were filed in the proper offices on July 29, 1903. These changes consisted of eliminating from the lines of the proposed streets certain lands belonging to an adjoining owner and including other lands belonging to the same owner, in the vicinity of the approach to the bridge over the Bronx river, and presumably for the purpose of improving such approach.

On the 18th day of August, 1903, and after the filing of the map showing the relocation of the street at the bridge approach, the board of estimate and apportionment adopted a resolution providing that the title to each parcel lying within the lines of Westchester avenue from the Bronx river to Main street (being the whole of the proposed improvement) should vest in the city of New York on the fifteenth day of October following.

On the 31st day of December, 1903, the city on application to the court amended its proceedings so as to include the new lands within the lines of the relocated street, and excluding from the proceedings the lands which had been eliminated by the resolution and to conform to the amended map filed July twenty-ninth previous. This order permitting amendment was procured on due application, no one appearing in opposition.

The commissioners were not formally reappointed to appraise these new lands, nor did they take any new oath with respect to them. The lands which were included in the resolution, as well as those which were excluded by it, all belonged to the Watson estate, and prior to the resolution authorizing the change of location, and prior to the amendment of the petition, the Watson estate, through attorneys for its trustees, had duly appeared in the proceeding and continued so to appear after such amendment, without any objection. The city also proceeded as though the proceedings were regular and the amendment proper.

In December, 1904, the board of estimate and apportionment authorized the commissioners to make separate reports with reference to damage parcels, and they reported a large number, to some of which the city made objection, and upon the same being confirmed brings this appeal.

The city insists that the commissioners had no power to appraise the damage for the taking of the new- land included in the relocation of the lines of the street according to the amended map, without reappointment and the filing of a new oath of office.

We think this contention cannot be upheld. Section 914 of the Greater New York charter expressly provides that the court shall have power at any time to amend street opening or park proceedings upon the prescribed publication of notice and posting, and we think the amendment made came within the authority given by that section. The map showing the amended location of the lines of the street, made under proper resolution, had been properly filed when the vesting resolution was passed on August 18, 1903. It must be assumed that the vesting resolution related to the new location of the street lines as well as to the original location. This resolution being followed by formal amendment which we think was permitted by the law, it must be deemed, so far as the city is concerned with respect to the payment of interest on any award, that the title vested at the time designated by the resolution.

To require the institution of new proceedings ¿n the relocation of the lines of a proposed street, however insignificant, would work great inconvenience and expense and is peculiarly unnecessary where the eliminated lands and the new lands included belong to the same person, as in the present case, and where that person has appeared in the proceeding before and after the amendment.

Our conclusion on this branch of the appeal is that the contention of the city is untenable and cannot be upheld.

On the merits of the appeal respecting damage parcels Nos. 1, 4, 5, 6, and 2A and 2B we think the award as to them should not have been confirmed and that the commissioners proceeded on a wholly erroneous theory.

The opening and expending of Westchester avenue consisted of widening an old and established highway by taking a strip from the abutting lands on each side, averaging from fifteen to twenty feet in width, and the acquiring of title by the city of the bed of the old street.

Damage parcels Nos, 1, 4, 5 and 6 embrace lands taken for the purpose of widening, and damage parcels 2A and 2B embrace the bed of the old highway.

The Watson estate, which obtained the awards complained of, owns the abutting lands extending back hundreds of feet, and the commissioners awarded damages on the theory-that city lots were taken. No lots were destroyed, for the owner had unlimited lands in the rear to make city lots of proper depth. The effect of taking a strip off the front adjacent to the old highway was simply to set the lots so much further back and face them upon a new, widened and improved avenue. The assessment of damages should have been on an acreage valuation instead of a city lot valuation. This erroneous method of computing the value increased the damage awarded by a very large amount and the court should have refused confirmation.

The awards for the fee of the old highway weTe also made' upon a wrong theory and were excessive. While an owner abutting upon an existing highway, to the center of which he has title, is , entitled to substantial damages for the taking of the fee of the highway by the city (Matter of One Hundred, Seventy-third St., 78 Hun, 487), still the requirement of substantial damages is fulfilled by the awarding of a comparatively small sum. The commissioners awarded about $100 per each city lot. This was grossly excessive and should not have been confirmed.

The remaining parcels included in the appeal embrace damages awarded to respondents Adee et al., and the Episcopal Church of St. Peters for lands and burial privileges taken. We are of the opinion that the awards of the commissioners as to these parcels were correct and were properly confirmed.

The order should be modified by affirming it as to parcels 127A, 127B, 127C and 127E, and as to parcels 1, 4, 5, 6, 2A and 2B it should be reversed and the proceedings remitted' to the commissioners to make a new award in conformity herewith, with ten dollars costs and disbursements to the appellant as against the trustees of the Watson estate, and with ten dollars costs and disbursements each to respondents Adee et al., and the Episcopal Church of St. Peters.

Ingraham, McLaughlin, Clarke and Scott, LI., concurred.

Order modified as directed in opinion, with ten dollars costs and disbursements to appellant as against the trustees of the Watson estate, and with ten dollars costs and disbursements each to respondents Adee and others and the Episcopal Church of St. Peters. Settle order oh notice. 
      
      See Laws of 1897, chap. 878, § 974, as amd. by Laws of 1901, chap. 466. Since amd. by Laws of 1906, chap. 658.— [Rep.
     