
    Matter of Acquiring Title, Etc., for the Opening and Extending of Canal Place from East One Hundred and Thirty-eighth Street to East One Hundred and Forty-fourth Street.
    (Supreme Court, New York Special Term,
    January, 1910.)
    Eminent domain — Condemnation proceedings — Decree or order — Amendment.
    'Where commissioners have reported that a certain sum should be paid to two persons for lands belonging to them taken for a street in the city of New York, the report should not be amended by striking out the name of one of such persons on the ground that they were copartners and the lands were copartnership prop■erty, tnough it appears that, after the death of the deceased partner, the surviving partner accounted to his administratrix upon the theory and agreement that the lands in question were partnership property, but it does not appear that the heirs at law of the deceased partner were parties to the accounting.
    Motion for an order amending the report of the commissioners of estimate.
    
      Michael J. Mulqueen, for petitioner.
    Constantine T. Timonier, for Jennie Godde, administratrix of the goods, chattels and credits which were of Kichard W. Kane, deceased.
   Brady, J.

This is a motion for an order amending the report of the commissioners of estimate, filed and confirmed in this proceeding on or about-December 1, 1908, by striking from said report the name of Richard W. Kane as one of the persons to whom an award for damage parcels Ros. 4PP1, 4QQ1, 4RR1, 4SS1, 4TT1 and 4UU1 was made and directing the comptroller of the city of Rew York to pay said award, with the interest thereon, to Bernard Lenahan. The award was made .by the commissioners of estimate to Richard W. Kane and Bernard Lenahan, as owners of record of the property acquired herein by the city of Rew York. Richard W. Kane and Bernard Lenahan, named in said report, and to whom the award was made, had been for a number of years copartners and were copartners at the time of the death of Kane in January, 1895. Kane died intestate, leaving a widow, Jennie Kane, now Jennie Godde, and seven children, one of whom is yet an infant. After Kane’s death an action was brought in this court by his widow, as administratrix, against Lenahan, the surviving partner, for an accounting, etc., and in the settlement agreed to between them in that action the real estate in question was treated by both parties as partnership property, and was made the subject of an accounting. This motion was brought on by service upon Jennie Godde, the widow, of a petition duly verified by Bernard Lenahan, together with notice of motion asking for the relief hereinbefore stated, and the said Jennie Godde appears by attorney and opposes the application upon the contention that the real estate in question was not partnership property, but was real estate held as tenants in common by Kane and Lenahan, and that the interest of Kane therein descended, upon his death, to his heirs at law. The moving party contends that the accounting made by him in the action referred to estops the heirs at law and the administratrix from making

present claim to the award or any part thereof. The heirs at law of Kane were not parties to the action for an accounting brought by his administratrix against the surviving partner. I am referred to the case of Darrow v. Calkins 154 N. Y. 514, which appears to support the contention that the heirs at law of a deceased partner are not necessary parties to an action for an accounting brought against the surviving partner by the administratrix, and that such heirs at law are estopped by the determination in such action where no controversy existed as to the character of the property as partnership property. But, assuming that the doctrine laid down in the case cited is well founded, I have grave ■doubt that it warrants the granting of the order asked for herein. Upon the face of the commissioners’ report the award is made to Bichard W. Kane and Bernard Lenahan. I have not before me the evidence upon which the award was so made, nor are the heirs at law of Kane, who have an undoubted right, in my mind, to an opportunity to uphold said award, now before the court. The motion is not to correct an error which might be apparent from an inspection of the papers, hut is rather to determine the rights of parties not now before the court and to alter the findings of the commissioners of estimate, which it must be presumed they reached upon sufficient evidence. Settle order on notice.

Motion denied.  