
    In the matter of the application of the Commissioners of the Central Park, for and in behalf of the Mayor &c. of the city of New York, relative to the opening of certain new avenues, roads, and public squares or places, as laid out by the Commissioners of of the Central Park.
    It was the intention of the legislature, by the act of 1813, (Valentine's Zatos, p. 1252, § 178,) to make the confirmation of the report of commissioners of estimate and assessment when lands are taken, for a park, &c., as they have declared it to be, final and conclusive in reference to their proceedings, as between the commonalty of New York, and all persons whomsoever, in refer- ’ ence to the land taken, and the estimate and assessment made and imposed. All persons are thus advised that, being given the opportunity to be heard, they must appear, and by objection either made before the commissioners or • submitted to the Supreme Court, protect whatever rights are invaded or jeopardized. '
    The object of notice of publication would be defeated if the abstract of the awards of the commissioners could not be altered; and although an award is made to a particular individual, in the first instance, he will not be justified in relying upon the entry of such award, and the abstract of the report. It is his duty to see, if he means to rely upon the report as originally prepared, that it is not, at the instance of any subsequent claimant having even an apparent title, altered to his prejudice.
    The alteration or correction may be made, according to the statute, at any time before the report is presented to the court, after publication.
    Although the report of the commissioners, when confirmed, is final and conclusive, in regard to the estimates and awards, it is not conclusive upon the rights of claimants inter sese. The statute allow-s an action to be brought against the person to whom the award is made, after payment thereof to him, by the person to whom of right the money paid belongs, notwithstanding., the report.
    Hence, an application by such rightful owner to set aside the order confirming the report will be denied, upon the groupds that the confirmation of the report is final, conclusive, and an end of the proceeding; that the commissioners are functi offieio; and that the court has not the power to alter the report, or send it back to the commissioners, for correction.
    MOTIOY to set aside an order confirming the report of the commissioners of estimate and assessment appointed for the opening of “Morningside Park” in the city of Yew York, so far as it related to the five lots hereinafter mentioned, and which were taken for said park; and also for an order directing the said commissioners to make the awards for said.lots to Patrick Callaghan or unknown owners. The report of the commissioners was confirmed 9uly 28,1870, and contained awards tó Phineas H. Kingsland and Wesley Smith as the owners of five leases of the lots, executed to them by the mayor, aider-men and commonalty of the city of Kew York, for the term of a thousand years*, in pursuance of sales for unpaid taxes and assessments, and a nominal award of one dollar to Patrick Callaghan, the owner of the fee. It appeared that the award had first been made, by the commissioners, to Mr. Callaghan, and afterwards changed to unknown owners; and subsequently, when Mr. Kingsland and Mr. Smith presented their claims before them, they changed their award, and made their report as above stated. The report as first made was examined by Mr. Callaghan, and finding the award given to him* he went away to California; and he alleged that he had no notice that the awards had been changed. It'also appeared that a Mrs. Currie had, in August 1870, commenced an action of ejectment, claiming that she was the .owner in fee of three of the lots, in which action the mayor, aldermen, &c., Mr. Kings-land and Patrick Callaghan were made defendants.
    
      T. James Glover, for P. Callaghan.
    
      Henry Parson's, for Mr. Smith.
    
      A. B. Lawrence, Jr., for Mr. Kingsland.
    
      David J. Dean, for the mayor, aldermen, &c.
   Brady, J.

The proceedings in reference to improvements, under which the assessments and awards were made and imposed in regard to the Morningside Park, are regulated entirely by statute. It is provided that when the report of the commissioners is presented to this court for confirmation, after hearing any matter which may be alleged against it, it is either to be confirmed or sent back to the commissioners, for revisal or correctionpor to new commissioners to be appointed by this court to reconsider • the subject matter thereof. And the commissioners to whom the report shall be so referred shall return the same corrected • and revised, or a .new report, to be made by them in the premises, to this court, without unnecessary delay, and the same, on being returned, shall be confirmed, • or again referred back, as right and justice shall require. And so from time to time, until a report shall be made or returned in the premises, which this court shall confirm; but such report, when so confirmed, shall be final and conclusive, and the mayor, aldermen and commonalty shall become and be seised in fee of all the lands, tenements and hereditaments in the report mentioned. (Act of 1813, Valentine’s Laws, p. 1252, § 178.)

By the provisions of the act of 1862 (Laws, 966; Valentine’s Laws, 1252,) it is the duty of the commissioners to deposit with the street commissioner an abstract of their estimate and assessments, at least forty days before their report shall be presented for confirmation. It is also their duty to publish a notice for thirty days, in two of the' daily newspapers published in this city, stating the intention to present their report for confirmation, to this court, at a time and place to be specified in the notice, in order that, all persons interested in such proceedings, or in any of the lands affected thereby, having objections thereto, shall file the same, in writing, with the said commissioners, within thirty days after the first publication of such notice; and further, that they will..hear such objections within the ten week days next after the expiration of the thirty' days during which publication is to be made. After considering the objections, if any, and making any correction of their estimate or assessments which they shall find to be just and proper, they shall present their report to the court at the time .and place specified in the notice already referred to.

It thus appears that the proceedings are regulated by statute,‘as already suggested, and the power of the court , defined.- The report may be sent back as often as this court may deem proper, before it is confirmed of new commissioners appointed—as often as may be deemed just—in order that the rights of all parties may be pro- . tected, anda proper .report obtained. It. is for the commissioners to make', however, the alterations or corrections in accordance with the principles laid down by this court for their guidance. The court cannot -make them directly; but if there be any doubt about this proposition, there is none, in my judgment, that the power, if possessed, must be exercised before the report is confirmed. When it is confirmed, the commissioners no longer exist. The advertisement of the intended presentation of the report of the commissioners, and the right to present objections during a period of thirty days, which the commissioners must consider and act upon, are designed not only to give all persons interested in the lands affected the opportunity to guard their interests, by calling the attention of' the court to the act or omission complained of, but to advise this court whether, in the performance of their duties, the'commissioners have acted illegally or oppressively, or . have made a mistake, error or miscalculation, to be shown by the objections presented.

.These provisions are full and ample for the object in view, and from their comprehensive and conservative character, in the absence of any expression to the contrary, indicate very clearly that it was the intention of the legislature to make the confirmation of the report of the commissioners, as they have declared it shall be, final and conclusive in reference to their proceedings, as between the commonalty of New York and all persons, whomsoever, in reference to .the land taken and the estimate and assessment made and imposed. All persons are thus advised that being given the opportunity to be heard, they must appear, and by objection either to the commissioners or submitted to this court, protect whatever rights are invaded or jeopardized.

The applicant does not seem to have presented.any objection, either to the commissioners or to the court.

It may be said that the award having been made to him in the first instance, he was justified, in relying upon that entry, and the abstract of the report; but such a course of conduct was erroneous. The object of notice of publication would be defeated if the abstract could not be altered ; and it was the duty of the applicant to see, if he meant to rely upon it as originally prepared, that it was not, at the instance of' any subsequent claimant having even an apparent title, altered to his prejudice.

The alteration or correction may be made, according to the statute, (supra,) at any time before the report is presented to the court, after publication; and in this case, the alteration appears to have been made at the proper time.

There is no evidence of its having been made subsequent to its presentation. Although, however, the report having been confirmed, is final and conclusive, as already stated, in regard to the estimates and awards, it is not conclusive upon the rights of claimants inter sese. The act of 1813 (supra) provides that an action may be brought against the person to whom the award was given, after payment thereof to him, by the' person to whom of right the money paid belonged, notwithstanding such report. This application must be denied, therefore, upon the ground that the confirmation of the report was final, conclusive, and the end of the proceeding; that the commissioners are functus officio; and that this court has not the power to alter the report, or send it back to the commissioners, for correction.

[New York Special Term,

December 5, 1870.

The applicant is not, however, without remedy. He can by action accomplish the object of this application, and by the interposition of the equity power of this court, successfully protect his rights, if it be, as alleged, that the lease executed by the city authorities, on the sale for taxes, was a nullity.

In the view thus presented of the question involved, it is not necessary to consider whether the- commissioners were right in recognizing the lease presented and changing their award; but nevertheless I think it was sufficient to justify them. (Masterson v. Hoyt, 55 Barb. 520.) Although when there are adverse claimants, it is the proper and better course to award to unknown owners.

Ordered in accordance with the conclusions stated

Brady, Justice.]  