
    In the Matter of an Application by Michael T. Daly, as Commissioner, etc.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 14, 1895.)
    
    Eminent domain — Award—Apportioning.
    An award for land, owned by several persons jointly, may be confirmed in part and sent back to the commissioners to' be apportioned between the parties entitled.
    Appeal from an order, confirming in part the report of the-appraisers.
    
      William H. Huldane, Abram J. Miller and Frederick S. Barnum, for app’lts; Francis M. Scoti, Corp. Counsel, for resp’ts.
   Pratt, J.

— This proceeding was instituted under the above-mentioned act for the purpose of acquiring certain real estate at. Brewster, Putman county, for sanitary protection of the east-branch of the Croton river and its tributaries, which are the-sources of the water supply of the city of New York. Commissioners of appraisal were appointed in accordance with the statute, whose duties were to ascertain and determine the compensation to be made to the owners of, and persons interested in, the real estate shown on the map and described in the petition. Among other claimants who appeared before the commissioners-were the appellants, the Gouverneur heirs, who claimed to own the undivided one-third of all the mines and minerals beneath the surface of the various parcels of land included in the proceedings. The commissioners performed the duties imposed upon, them, and their report to the supreme court, in which a specific sum was awarded for each parcel of land taken. The appellants are owners of the undivided one-third of the mines and minerals beneath the surface of each parcel included in the report, and no separate award was made to them by the commissioners. The appellants filed a claim before the commissioners, and submitted their interests without the introduction of any testimony, and without any exception to the proceedings in any way. When the report was presented to the court for confirmation, an order was made by which the report was confirmed in part, and was directed to be sent back to •' the commissioners in part, to apportion the awards made for the respective parcels between the appellants and the surface owners. All the parties to the proceedings acquiesced in this order, except the Gouverneur heirs, and from the order of confirmation this appeal was taken.

In our view the order was a very proper one. The commissioners had viewed the premises, and were conversant with the facts and circumstances surrounding the proceedings. They were therefore in a position to make the apportionment and determine what sums, if any, should be paid to these appellants.

The order appealed from should be affirmed, with ten dollars-costs, and disbursements to all parties.  