
    In the Matter of the Application of The City of New York, Appellant, Respondent, Relative to Acquiring Title to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Foster Avenue from the Westerly Line of Flatbush Avenue to the Easterly Line of Coney Island Avenue, in the Twenty-ninth, Thirtieth, Thirty-first and Thirty-second Wards, in the Borough of Brooklyn, City of New York. Annie W. Stephens and Others, Appellants, Respondents; Germania Real Estate and Improvement Company, Respondent, Appellant.
    
      Condemnation of land,for street purposes in New Torh city—the corporation counsel, who has given notice of confirmation of the commissioners’ report, may object thereto—record shown, to contain all the evidence — measure of damages where the land has already been dedicated for street purposes.
    
    The fact that the corporation counsel of the city of New York has given notice, pursuant to statute, that the report of commissioners of estimate and assessment appointed in a condemnation proceeding will be presented for confirmation, does not preclude the corporation counsel from opposing the confirmation of the report on the hearing before the Special Term, or from taking an appeal from the order confirming it.
    When the record on such an appeal sufficiently shows that it contains the evidence taken before the commissioners, even though the record dqes not embrace a certificate that it contains all of such evidence, considered.
    Where land taken in the proceeding has previously been dedicated by the abutting owner for street purposes, the basis of the award should be the depreciation in the value of the abutting,property, resulting from the fact that the land in question, which has already been dedicated to street purposes, has been acquired' in fee by the city of New York for street purposes.
    
      "Where the commissioners first award the fee value of such land, and, upon having the fact that the land has already been dedicated to street purposes brought to their attention, reduce the award to one-half, the award should be vacated, it being evident that the value of the land condemned was still assumed as the basis of the award, instead of the depreciation in the value of the abutting property.
    Cross-appeals by the petitioner, The City of New York, and by Annie W. Stephens and others, 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 5th day of May, 1903, confirming the report of the commissioners of estimate and assessment in the above-entitled proceeding.
    
      Charles S. Taber, for the City of New York.
    
      Joseph A. Flannery, for Annie W. Stephens and others.
    
      Barclay E. V. McCarty [Jared G. Baldwin, Jr., with him on the brief], for the Germania Real Estate and Improvement Company.
   Jenks, J.:

The learned counsel for the Germania Company insists, forasmuch as the corporation counsel moved for a confirmation of the report, that he cannot be heard on appeal from the order. The authorities cited by him present cases where the order or judgment was entered on default or by consent. This order recites notice of motion for confirmation and the hearing of counsel, but it does not recite any counsel as then moving to confirm. The Greater New York charter provides that the corporation counsel may present the report for confirmation, or any person interested may do so upon notice to him in case of his neglect or refusal. (Laws of 1897, chap. 378, § 984, as amd. by Laws of 1901, chap. 466.) Pursuant to this practice, the corporation counsel gave notice as required by the statute that the said report would be presented for confirmation. The court could either confirm the report in whole or in part, or refer the same, or a part thereof, to the old commission for revisal or correction, or to new commissioners for reconsideration (§ 986, as amd. by Laws of 1901, chap. 466), and the city or any other party or person affected or aggrieved may appeal (§ 988, as amd. by Laws of 1901, chap. 466). I think that the presentation of the report as for confirmation by the corporation counsel may be regarded as the furtherance of the proceedings by the usual procedure, and that by thus bringing up the report for whatever action the court might take thereon the corporation counsel was not precluded from his opposition either at that hearing or upon this appeal. In other words, if he wishes to object to the report, he was not bound to neglect or to refuse to present it to the court. The only affirmative act open to him was to take the step taken in this proceeding.

It is also objected that the record is defective in that it does not present a certificate that the record contains all the evidence. Section 988 of the charter (as amd. by Laws of 1901, chap. 466) provides that the appeal shall be based upon the evidence taken before the commissioners, or such part or portion thereof as the Special Term may certify or the parties to said appeal may agree upon as sufficient to present the merits of the questions in respect to which such appeal shall be had. The stipulation in the record reads that the foregoing are true copies of original papers used in the court below, on which the case appealed from was made. The order is based upon the final report'as well as the preliminary report, proofs, testimony and objections already on file herein. The statement of the record shows that the commissioners duly reported to the court with the minutes of the testimony taken by them, and that thereafter the notice of confirmation was given. I think that this is sufficient proof that the record on appeal contains the evidence taken before the commission.

The preliminary report compensated the Germania Company by allowing a fee value of about five acres of land taken for the street. The city and the appellant Stephens then objected that the award was excessive, for the reason that this land had been theretofore thrown open to public use, and had been dedicated to street purposes. The commission thereupon took testimony upon this question, determined that the street had been thus dedicated, and reduced its original award by one-half. The able and thorough opinion of Maddox, J., at Special Term makes extended comment upon the correctness of this conclusion unnecessary. But I think that examination of the record reveals that the commission adopted the wrong principle for their award. This mistaking clearly appears from the fact that the commission first awarded a fee value of the

land taken, and then, after ascertaining the prior dedication, of the land to street purposes, made an award which was but a reduction of the original award) and received no further evidence save that which related to the value of the land taken. It appears from the minutes: “ All commissioners met in executive session on January 7, 1903, and decided, after due deliberation, that they would make no change in the district of assessment, and as to Parcels 27os. 1, 4, 5, 6, 7 and 8, they decided that the land embraced in those parcels was charged with an easement in favor of the grantees of the Germania Real Estate and Improvement Company, who have purchased property on map of South Midwood, and therefore reduced the awards for such parcels to a sum equal to 50 per cent of the preliminary awards, and directed the clerk to have an amended report prepared,” etc. In fine, the value' of the land condemned was still assumed as the basis of the damage. But I think that the true rule is laid down in City of Buffalo v. Pratt (131 N. Y. 293), namely, such substantial damages as would be ascertained by measuring the effect upon the value of their property of such a deprivation.” In other words, the question was: Is the fair market value of the Germania’s abutting property depreciated by the fact that land in front, already dedicated to street purposes, is acquired by the city in fee for street purposes? That depreciation, if any, is the basis of the award. The opinion of Gray, J., in the Pratt Case (supra) discusses and indicates the reason of the rule and the possible elements of damage. Mr. Justice Maddox also states the rule of City of Buffalo v. Pratt (supra) in his learned opinion. But the difficulty is that it is quite evident that this, rule did not obtain in the assessment made by the commissioners.

The order confirming the report of the commissioners should be reversed, and the proceedings referred back to the commission.

Bartlett, Hirschberg and Hooker, J J., concurred.

Order confirming report of commissioners reversed, without costs of this appeal to any party, and matter remitted to the same commissioners for disposition in accordance with the opinion of Jenks, J.  