
    In the Matter of the Application of Samuel B. Hamburger and Charles W. Hoffman for Payment of the Award Made for Parcel No. 17, on the Damage Map, and in the Report of the Commissioners of Estimate and Assessment in the Proceeding to Open Marcy Place, from Jerome Avenue to Concourse, in the City of New York. The Comptroller of the City of New York and The City of New York, Appellants; Samuel B. Hamburger and Charles W. Hoffman, Respondents.
    First Department,
    December 31, 1914.
    Municipal corporation — city of Mew York—street opening proceeding —right of abutting owners of easement in street to damages.
    Where the city of New York in a proceeding to open a street acquires a fee to lands upon which a street had been laid out by the owner, purchasers of lots abutting on said street who have merely an easement therein, the fee being retained by the owner, have no claim either legal or equitable to an award made by the commissioners to unknown owners.
    Appeal by the comptroller of the city of Hew York and another from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of September, 1914, resettling an order entered in said clerk’s office on the 8th day of July, 1914, and granting a motion to pay to the petitioners an award made to unknown owners.
    
      John J. Kearney, for the appellants.
    
      Merle I. St. John, for the respondents.
   Scott, J.:

In a proceeding to open Marcy place from Jerome avenue to the Concourse an award of $120 was made to unknown owners for a strip of land measuring five by sixty feet.

It appears that on October 8, 1872, there was filed in the office of the register of Westchester county a map of property at Inwood belonging to Andrew J. Dam. The property was shown as cut up into streets and avenues with lots facing thereon. On said map was shown Marcy place, intersected by certain streets, among which was one called Mott street. The plot of land for which the above-mentioned award was made lies wholly within the lines of Mott street as shown on the said map.

Andrew J. Dam afterwards conveyed lots on either side of said Mott street, to the predecessors in title of the petitioners in this proceeding, but by descriptions which while the existence of Mott street was recognized, excluded from the conveyance any fee interest in the land shown as Mott street. The result of the conveyance was that Dam’s grantees acquired a private easement for street purposes over said Mott street, while Dam retained the fee of said street subject to said easements. It was, therefore, clearly improper to award substantial damages for this incumbered fee. (Matter of City of New York, 196 N. Y. 286.) The award was made, however, was duly confirmed and the order of confirmation still stands unrevoked. One Charles H. Topping, claiming to be owner of the fee, has made several applications at Special Term for an order directing payment to be made to him, but has been unsuccessful.

Now come the petitioners herein, owners of lots abutting upon Mott street, who ask, with the acquiescence of Topping, that the award of $120 be divided between them, one dollar being paid to Topping, and the balance in equal shares to Hoffman and Hamburger, and the order appealed from makes this disposition of the award. What may be the technical right of Topping, if he is the fee owner, to collect the award in default of a reopening of the proceeding on motion of the city, is not before us, and need not be considered. It is clear, however, that the petitioners have no claim either legal or equitable to be paid the award. They may not claim it on the ground that they have been unjustly assessed by reason of the erroneous award, because the assessment was not confined to their property, but extended over a wide area. They may not claim it upon any theory that the private easements in the street have been taken, because they have not and at most there have been substituted for the private easements, public - easements. Furthermore the petitioners were not the exclusive owners of said easements which were enjoyed in common by all lots abutting upon Mott street. It may be that the city of New York is not entitled to retain the award, but it is so entitled until called upon to pay it to some one having a better claim thereto. The petitioners have no claim to it, and as they must succeed, if at all, upon the strength of their own claim rather than upon the weakness of the city’s title, the order appealed from was erroneously granted. We have not overlooked Matter of City of New York [Beverly Road] (131 App. Div. 147), where an attempt was made to distribute on equitable principles an award made under similar circumstances. We consider, however, that that case was practically overruled by Matter of City of New York (supra) wherein the Court of Appeals, on appeal from an order similar to the present, emphatically said: “We are unwilling to take part in the division of a fund to which none of the claimants are justly or equitably entitled, so far as now appears.”

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs ancL disbursements, and motion denied, with ten dollars costs.  