
    Matter of the Application of The City of New York for the Opening of Mount Olivet Avenue from Flushing Avenue to Metropolitan Avenue, Borough of Queens.
    (Supreme Court, Kings Special Term,
    January, 1911.)
    Eminent domain — Condemnation proceedings — Fees of commissioners — For performing duties imposed on other officers.
    Claims by several persons to interests in the same fund do not necessarily constitute conflicting claims within the provisions of section 9'7S of the Greater New York charter; and when the commissioners of estimate and assessment take proof of title in cases where the same is undisputed, instead of referring the matter to their clerk or to the assistant corporation counsel, théy should not he allowed compensation therefor.
    Neither should they be allowed fees for meetings at which nothing was done but to note defaults or grant adjournments.
    Motion to tax the fees of commissioners of estimate and ■assessment and the costs and expenses of the city of New York in a street opening proceeding.
    Archibald R. Watson, Corporation Counsel (Joel J. Squire and George E. Draper, of counsel), for city of New York.
    William B. Keese, for commissioners.
    Joseph B. Flannery (Benjamin Trapnell, of counsel), for property owners.
   Scudder, J.

The corporation counsel has refused to certify that the commissioners are entitled to compensation for sixteen meetings at which proof of title was taken, upon the around that, under section 978 of the charter, it was the duty of the commissioners to refer the taking -of suck proof to the assistant corporation counsel, or the clerk of the commission.

The provisions-of the section to which theeorporation conn- 1 sel refers are as follows: “ Said commissioners shall refer the taking of proof of title of property taken in all cases where the same is undisputed, and likewise proof as to any lien or incumbrance thereon, or any demands against the same, to the clerk of said commissioners, or to the assistant corporation counsel in charge of the proceeding.”

TJpon the hearing of the motion, in opposition to the contention of the corporation counsel, it was argued that this statute is either meaningless or at the most only capable of an absurd "construction; the gist of such argument being that, as the statute limits the reference of proof of title to cases where the title is undisputed, the- commissioners would be obliged to take proof of all titles in order to determine whether any of them were undisputed and should be referred to the assistant corporation counsel to take proof.

I-t is the duty of the court to avoid, if possible, the giving to a statute a construction which would render it meaningless or absurd; and it seems to me that such a construction is avoidable in the present case, if an undisputed title within the meaning of the statute is regarded as one which is not disputed before the commissioners by the presentment of adverse or conflicting claims. To determine whether in this sense a title is undisputed, it is not necessary for the commissioners to take proof of title. By previous provisions of section 9'78 of the charter, commissioners are required to give notice to persons or parties interested to present their claims or demands, duly verified with -such affidavits or other proof as they may desire, within ten days after the date of such notice; and the hearing before the commissioners is not to take place until after the expiration of said ten days. On or before the first hearing before the commissioners, therefore, they can examine the claims presented to ascertain whether or not any conflicting claims of title have been presented; and the taking of proof of title in all cases where there are no -such conflicting claims should he referred to the clerk of the commissioners or to the assistant corporation counsel, as required by the statute.'

Of course the fact that ¡several persons or parties claim to‘have an interest in the same property does not necessarily make their claims conflicting. In order to create conflicting claims, as these words are here intended to mean, two or more persons must claim the same interest or right. The interposition of a claim of lien or incumbrance does' not, therefore, raise a dispute as to title; and the statute under consideration expressly provides that the taking of proof as to any lien or incumbrance shall be referred by the commissioners to their clerk, or to the assistant corporation counsel.

It is to be borne in mind, in construing this statute, that, where there is a dispute as to the ownership of a parcel of land, it is the duty of the commissioners only to ascertain and report its value and to make an award to unknown owners. Charter, § 985; Matter of Commissioner of Public Works, 135 App. Div. 561, 568. Where, therefore, the existence -of a substantial dispute as to the title to any parcel of land has been brought to the commissioners’ knowledge, the taking of proof of title is unnecessary and uncalled for.

In the present case I am of opinion that the commissioners should not have taken proof of title, but should have referred the .taking thereof to their clerk or the -assistant corporation counsel. I also, concur with the corporation counsel in the disallowance to commissioners of fees for meetings at which nothing was done but to note defaults or grant adjournments. Commissioners’ fees taxed at the amount certified by the corporation counsel.

Ordered accordingly.  