
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Cromwell Avenue (Although Not Yet Named by Proper Authority) From East One Hundred and Fiftieth Street to Jerome Avenue, as the Same Has Been Heretofore Laid Out and Designated as a First-class Street or Road, in the Twenty-third Ward of the City of New York. Edward M. Grout, as Comptroller of the City of New York, Appellant; J. Roosevelt Roosevelt and Others, Trustees of John Jacob Astor, under the Will of William Astor, Deceased, Respondents.
    'Street opening in New York city — interest on the award, by what statute governed.
    
    Where a proceeding to open a street in the city of New York was instituted, and the title to the land sought to be acquired vested in the city, prior to the time when the Greater New York charter took effect, although both the preliminary and final reports of the commissioners of estimate and assessment appointed in the proceeding were filed after that time, the interest payable on the awards made in the proceeding runs to the date of payment of the award and not to a, date six months after the date of confirmation of the commissioners’ report.
    It is regulated by the provisions of the Consolidation Act (Laws of 1882, chap. 410, § 992, as amd. by Laws of 1893, chap. 660, and Laws of. 1895, chap. 449) and not by section 1001 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466)
    Van Brunt, P. J., dissented.
    Appeal by Edward M. Grout, as comptroller of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1904, directing the issuance of a peremptory writ of mandamus commanding the comptroller of the city of New York to pay to the respondents or their attorney the sum of $21,505, with interest thereon from the 20th day of October, 1897, to the date of payment of said sum and interest.
    
      John P. Dunn, for the appellant.
    
      John C. Shaw, for the respondents.
   McLaughlin, J.:

This proceeding was instituted for the purpose of acquiring title to lands necessary for the opening of Cromwell avenue in the city of New York. Commissioners' of estimate and assessment were appointed on the 31st day of March, 1897, and the title to the land taken vested in the city on the twentieth of October of the same year. The preliminary report of the commissioners was filed on the 29th day of January, 1902, in which awards were made to the owners of the land taken, and on the 10th day of January, 1903, the commissioners filed their, final report, which was confirmed by an order of the Special Term of the Supreme Court bearing date the 17th day of March, 1903, and filed on the 18th day of March, 1903. On the 24th day of December, 1903, the comptroller of the city notified the owners of the land taken that the city was ready to pay the awards, with interest from October 20, 1897, to September 17, 1903, which was six months subsequent to the confirmation of said report. • The respondents claimed they were entitled to interest upon the sums awarded. to the timé payment was made by the city, and the comptroller having refused to accede to their contention in this respect, they obtained an Order for a peremptory writ of mandamus directing him to make such payment, and ¿the city has appealed.

The sole question presented is whether the interest on the awards is to run to the date of payment or to cease at a date six months subsequent to the date of confirmation of the report of the commissioners of estimate and assessment, and its determination turns upon whether the payment of the awards is regulated by the provisions of the Consolidation Act (Laws of 1882, chap. 410, § 992, as amd. by Laws of 1893, chap. 660, and Laws of 1895, chap. 449) or by section 1001 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466). If the former, then the order must be affirmed, and if the latter, then it must be reversed.

Under section 1001 of the Greater New York charter unless a demand for payment of an award is made upon the' comptroller within six months after the date of the confirmation of the report of the commissioners, interest ceases at the expiration of that time, While under the Consolidation Act, as amended, the running of interest is not limited. The Greater New York charter went into effect on the 1st day of January, 1898 (§ 1611). This proceeding was. instituted under the Consolidation Act and title vested while that act was in force. Therefore, the interest to which the claimants are entitled upon their awards is to be determined by that act. This has been settled and determined by this court and the Court of Appeals. (Matter of Mayor, 4.0 App. Div. 452; affd. On opinion below, 161 N. Y. 622; Matter of East 175th Street, 49 App. Div. 114; affd., 162 N. Y. 661.) The question is not now an open one and,, therefore, the order appealed from upon these authorities must be affirmed.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

Patterson, O’Brien and Hatch, JJ., concurred; Van Brunt, P. J., dissented.

Order affirmed, with ten dollars costs and disbursements.  