
    In the Matter of the Application of Charles Minzesheimer, Appellant, for a Peremptory Writ of Mandamus or Other Order or Mandate Directed to William A. Prendergast, as Comptroller of the City of New York, Respondent, Commanding and Enjoining Him to Pay the Award Made to the Petitioner in Proceedings to Acquire Title to Walton Avenue, etc., in the Twenty-third and Twenty-fourth Wards of the City of New York.
    First Department,
    May 19, 1911.
    Eminent domain — street closing — interest after demand for payment of award— easements of abutting owner are property — due compensation — interest on award before and after street is closed — estoppel — failure to contest confirmation of award.
    Upon the closing of a public street in the city of New York an abutting owner is entitled to interest on the award made to him, beginning at a date thirty days from the time he makes proper demand for payment upon the comptroller.
    The street easements of an abutting owner are property within the pro teetion of the State and Federal Constitutions and he cannot be deprived thereof by closing the street unless just compensation be made.
    Where on the closing of a street an abutting owner has been deprived of his easements therein the award should include, not only the value of the easement taken, but interest'thereon down to the date of the report. But the interest forms part of the compensation or damages, and should be awarded as such, though it is not necessary that it should be separately stated as interest.
    The abutting owner deprived of easements is entitled to interest, although the street closing statute is silent upon the subject, for the Constitution requires due compensation. '
    Where the report of commissioners of estimate states that their awards represent the “ entire loss and damage to abutting owners,” it will be deemed to include an allowance by way of interest which accrued up to the time when the legal closing of the street became effective.
    In any event, where an abutting owner failed to contest the confirmation of a report containing the statement aforesaid, he cannot subsequently claim that the award was deficient in not allowing interest.
    The interest to be included in the award is part of the compensation; but the interest which begins to run thirty days after demand is not compensation but a penalty for delay in payment.
    Appeal by the petitioner, Charles Minzesheimer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of March, 1911, denying the" petitioner’s motion to compel payment of interest upon an award in a proceeding to close a street.
    
      Harold Swain, for the appellant.
    
      James Regan Fitz Gerald, for the respondent.
   Scott, J.:

Appeal by a .property owner from an order denying His motion to compel payment of interest upon a street-closing award.

The petitioner owned a plot of land, formerly fronting on Seventh avenue, which was legally closed, under the terms of the- Street Closing Act (Laws of 1895, chap. 1006), on November 2, 1895. Proceedings having been instituted by the city ' in 1896 to acquire title to Walton avenue, petitioner on May 13, 1902, procured an order under section 14 of the said act of 1895, directing* the commissioners of estimate and assessment in the Walton avenue proceeding to ascertain and report .the damage which he had sustained by the closing of Seventh "avenue upon which his.land fronted. No question is made as to the regularity of the proceedings. On December 5, 1905, the commissioners made their report, in which they awarded the ■ petitioner the sum "of $1,200 as damages sustained by .reason of the closing of Seventh avenue, stating in their report' as follows: “We further report that our awards represent the entire loss and damage which the owners Of or parties interested in the lands affected by the abandonment and discontinuance and closing of the discontinued or closed'streets or avenues, have suffered therefrom, *■ *

This report was confirmed on June 14, 1906, and on June 27-, 1906, the petitioner made a formal written demand upon the comptroller for.the payment of said award, “with such interest,.if any, as may have lawfully accrued on such award.” The' city appealed to this court and to the Court of Appeals from the' order confirming the final Order of the commissioners' (Matter of Mayor, etc. [Walton Ave.], 131 App. Div. 696; 197 N. Y. 518),- with the result that said order was affirmed on December 7,1909, so far as concerns the award to this petitioner. On October 19,1910, the comptroller notified the petitioner that he was prepared to pay said award, but refused to pay any interest thereon, whereupon the petitioner instituted this proceeding to compel the payment of said award with interest. A similar question was recently passed upon by us in Matter of Edelmuth v. Prendergast (142 App. Div. 785), wherein we held that under like circumstances a property owner damaged by the closing of a street in front of his premises was entitled to interest upon the award from a date thirty days after he has made a proper demand upon the comptroller for .payment. It is needless to restate the reasons which led to that conclusion. The petitioner w;as, therefore, entitled, at all events, to interest upon his award from July 27, 1906. He, however, goes further and raises a question not considered, in the Edélmuth case, by claiming that he is entitled to interest from. November 2, 1895, the date on which, by the filing of the map of the new street plan, Seventh avenue became legally closed and discontinued. The argument is that the legal closing and discontinuance of the street at once deprives the abutting owner of his easements therein, which are property and cannot be taken without just compensation, and, hence, by analogy to the provision of the Consolidation Act applicable to the acquisition of land for street openings, the petitioner should receive interest upon the award from the date upon which he’was divested, of title. (See Laws of 1882, chap. 410, § 992, as amd. by Laws of 1893, chap. 660, and Laws of 1895, chap. 449.) It is not to be denied that street easements are property and within the protection of the State and Federal Constitutions. (Muhlker v. Harlem R. R. Co., 197 U. S. 544; Birrell v. New York & Harlem R. R. Co., 198 id. 390.) .Nor is it to be questioned that the commissioners of estimate and assessment in fixing the damages to be paid by way of compensation to an abutting owner whose street easements have been destroyed should award not only the value of these easements when legally taken, but also interest thereon down to the date of the report. • (Matter of City of New York [E. 178th St.], 107 App. Div. 22; affd. on opinion below, 183 N. Y. 571), but such interest forms a part of the compensation or damages and should be awarded as such. It is not necessary, therefore, that it should be separately stated as interest. This obligation to include an allowance as for interest in the award does not rest upon anything in the Street Closing Act, which is silent upon the subject, but upon the constitutional requirement that due compensation must be made. In this respect the statute differs from section 992 of the Consolidation Act (as amended) which plainly contemplates that, in cases in which title vests in the city before the confirmation of the report, the commissioners shall appraise the damages as of the date when title vested, interest being paid thereon from such date by virtue of the statute, and not because included in the estimate of damage. There is nothing to show that the commissioners of estimate and assessment have not done their full duty in making their award to petitioner. Their report states that their awards represent the entire loss and damage ” which the owners of the property affected, including the petitioner, have suffered. If it does include the “ entire loss and damage ” it must include an allowance by way of interest upon the damage which accrued when the legal closing of the street became effective. If this award was insufficient, either because it did not include interest, or for any other reason, it is now too late for the petitioner to question it. Even if it expressly appeared, as it does not, that the commissioners had not included interest in their award it would still be too late, after permitting the report tó be confirmed without opposition^ to now claim that the award was insufficient. (Matter of Belmont St., 128 App. Div. 636.) ' Our conclusion, therefore, is that the legal closing of a street under the Street Closing Act involves the destruction of the abutters’ street easements which are property and for which just compensation must be made; that in estimating such compensation it is the duty of the commissioners to ascertain the loss, to the abutters as of the date when the street was legally closed, adding thereto interest to the date of their report;-that such loss and interest taken together constitute the damage and may be included in one sum as damage without designating how much is allowed for loss and how much for interest; that when the commissioners state that their, awards represent the entire loss and damage which any person named therein has suffered in consequence of the closing of the street (in these or equivalent words) it will be presumed, in the absence of proof to the contrary, that the awards include both the loss at the date the street was legally closed, and-interest thereon to the date of the report; that it is too late after a report- has finally been confirmed without opposition for a claimant to insist that his award is insufficient either because interest was not included in the award or for any other reason. The interest which is required to be included in an award is given by way of compensation. The interest upon the award, which is to begin on a day thirty days after demand, is not a part of the compensation, but is given as a penalty for delay in payment. It is this latter interest alone to which the petitioner is entitled on this application.

The-order appealed from will, therefore, be so modified as to require the comptroller to pay the award to the petitioner with interest from July 27, 1906, and as so modified will be affirmed, without costs to either party.

Ingraham, P. J., Clarke, Miller, and Dowling, JJ., concurred.

Order modified as directed in opinion and as so modified affirmed, without costs. Settle order on notice.  