
    In the Matter of the Application of the Board of Street Opening and Improvement, Relative to the Opening of Lexington Ave. from Ninety-Seventh to One Hundred and Second Street.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 16, 1891.)
    
    1. Municipal cobpobations—Discontinuance op stbeet opening pboceedings—Interest op objeotobs.
    Where there are mortgages upon, property, for which an award is made in street opening proceedings, the award belongs not to the owner of the property, but to the mortgagees, and the owner cannot be counted to that ex'ent in estimating whether a majority in amount of assessments and awards object to the proceedings.
    2. Same—Ownebship.
    A deed made by a person is not the proper proof of ownership in him, which should be exacted from claimants not named in the commissioners’ report.
    3. Same.
    The sale of a portion of his property before the report of the referee is made deprives a party of his right to object to the continuance of the proceeding. so far as he bases his objection upon any alleged interest in the portion thus sold.
    
      Appeal from a special term order denying an application to discontinue the proceeding under § 990 of the Mew York City Consolidation Act.
    
      James A. Deering, for app’lt; Carroll Berry, for resp’ts.
   Bartlett, J.

Section 990 of the Mew York City Consolidation Act, which is taken in part from chap. 209 of the Laws of 1839, provides that upon the coming in of the report of commissioners of estimate and assessment in street opening proceedings, and upon the hearing of the application for the confirmation thereof, “ if persons who appear by the said report to be interested, either by assessment for benefit or award for damages, to the amount of a majority in amount of the whole assessments and awards, shall appear and object to further proceedings upon the said report, the court shall order the same to be discontinued, and the same shall thenceforth be discontinued.”

The court below held that no persons were entitled to object under this provision except such as were named as persons assessed or benefited in the report of the commissioners; and that where awards had been made to unknown owners, no objection was available on behalf of persons who might come before the special term and establish their ownership when the report came up for confirmation.

We are referred to an opinion of Mr. Justice Roosevelt, delivered at special term, in this city, in 1853, in the Matter of Widening and Extending Canal and Walker Streets, which indicates that a different view of the act of 1839 was entertained by that learned judge; for he speaks of having already decided “that owners whose names do not appear on the report, but the amount of whose awards or assessments, as unknown awards,’ do appear, are entitled, upon proper proof of ownership, to object to the continuance of the proceeding.”

But it will not be necessary to determine which of these conflicting interpretations of the statute is correct; for even if the construction be adopted which is most favorable to the objectors, they failed to make out a case which entitled them to have the proceeding discontinued. A majority in amount of the awards and assessments would be represented by persons interested in the proceeding to the extent of $133,922.93.

The learned counsel for the appellants asserts that the objectors were shown to represent $166,395.61 in the aggregate. In this view I think he is mistaken. Three deductions, at least, must be made from his total, and these reduce it to less than the statutory majority.

One of the objectors is Mary A. Coleman, who claims to own property upon which the assessments are $4,753.26 and the awards are $18,892.23. This property is mortgaged for $24,000. The interest in the awards, therefore, belongs not to her but to the mortgagee, who in this class of cases is presumptively entitled to so much of the award as legally represents the amount of his mortgage. Astor v. Hoyt, 5 Wend., 603; Matter of John and Cherry Streets, 19 id., 659; Barnes v. Mayor, 27 Hun, 238.

It follows that the appellants have over-estimated Mrs. Coleman’s interest in this proceeding to the extent of $18,892.23.

They have also claimed for Stephen H. Thayer, another objector, an interest which is stated in the referee’s report at $13,018.68 and in Mr. Deering’s brief at $10,293.84. There is no competent evidence suffcient to establish the fact that he is interested to the extent of either amount. The claim rests simply on Mr. Thayer’s oral statement that he owns certain property between Ninety-ninth and One Hundredth streets and Third and Fourth avenues. No deed to him is produced, the deed to which reference is made by the counsel for the appellants on the ninth page of his brief being, a conveyance not to Mr. Thayer but from him. This is very far from being the “proper proof of ownership” which Judge Roosevelt must have had in mind in the case already cited and which should certainly be exacted from claimants not named in the report of the commissioners.

A third objector whose interest is over-stated is Eugene T. Lynch. The referee finds him to be the owner of property upon which the assessments amount to $13,512.56. But he had sold a part of his property before the referee took his testimony and before the final hearing of the motion to confirm the commissioners’ report. This, I think, deprived him of any right to object to the continuance of the proceeding, so far as he based his objection upon any alleged interest in the portion thus sold. The statutory majority contemplated by § 990 of the consolidation act must be made up of persons in interest at the time of the coming in of the report of the commissioners and at the time of the hearing of the application for the confirmation thereof. Mr. Lynch does not come within the latter category so far as a portion of his property is concerned represented by $6,794.90 of assessments; for as has already been stated, his interest therein had ceased by reason of the sale thereof before the application to confirm the report came on for a final hearing.

If I am correct in the foregoing views, and the appellants have exaggerated the interest of Mrs. Coleman by $18,892.23, the interest of Mr. Taylor by $10,293.84 (talcing the lower estimate and the interest of Mr. Lynch by $6,794.90, we have an aggregate of $35,980.97, which, when deducted from $166,395.61, the amount which the objectors claim to represent, leaves only $130,414.60, which is less than the prescribed “majority in amount of the whole assessments and awards.”

I think there are other objectors who are not proved to be persons interested, within the meaning of the law, to the extent of their claims, but there seems to he no occasion to go further to show that the application to discontinue the proceeding was properly denied on the facts.

There is nothing in the point that because no exceptions were filed to the referee’s report it stands confirmed as a matter of course, and the facts found by him are, therefore, not open to question. The referee was ordered simply to take proof of the title of the objectors and report his opinion thereon. He was not authorized or 'directed to decide anything, and there is nothing in the order of reference which indicates that the court intended to delegate to him. any of the functions devolved upon it by § 990 of the consolidation act The court simply sought the aid of the referee in taking the necessary testimony, and the benefit of his opinion as to the conclusions of fact to be based upon the proof thus taken; but in so doing it could not deprive itself of its own power to decide the application according to its own view of the facts.

The order appealed from should be affirmed, with costs.

Tan Brunt, P. J., and Barrett, J., concur.  