
    In the Matter of the Application of The City of New York, Relative to Acquiring Title, etc., for the Purpose of Opening Carroll Street, from Albany Avenue to East New York Avenue, in the Twenty-fourth and Twenty-ninth Wards of the Borough of Brooklyn, the City of New York. Melanie Pfizenmayer, Appellant; The City of New York and Remsen Realty Company, Respondents.
    Second Department,
    March 4, 1910.
    Municipal corporations — eminent domain — street opening, city of New York — court cannot alter .report — awards — condemnation of street already open to public — rights of abutting owners.
    On reviewing the report of commissioners of estimate and assessment in a street opening in the city of New York the court has no power to change an award made to a certain person so as to make it payable to unknown owners, but must follow the procedure prescribed by section 986 of the charter and return the report to the commissioners, or to new commissioners, for revision and correction..
    
      It seems, that one owning merely a naked fee in a street already thrown open to public use and not subject to assessment for .benefits received when the street is acquired by the city of New York, is not entitled to substantial damages, for her fee is already subject to a right of way, aud additional burdens would be put upon abutting owners assessed for benefits received.
    
      It seems, that upon awarding damages on taking the fee of a street already subject to a public use, the commissioners should consider the claims of abutting owners who are assessed for benefits received.
    Appeal by Melanie Pfizenmayer 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 1st day of March, 1909, directing the clerk of the court to change an award to the appellant, made by commissioners of estimate and assessment of the city of Mew York, so that the same should be payable to an unknown. owner.
    The property taken was embraced within a street which had been thrown open and used under the name of Carroll street, but which had not become a public street by dedication, or the acquisition of title by condemnation proceedings. Lots had been sold abutting upon this street, which gave to the owners, as against their grantors and predecessors in title, an easement for ingress and egress upon and over the land forming tile street-.-. In 1901 the appellant took title to lands on both sides of this street and abutting thereon. The description in such deed of the two parcels, title to which was later- acquired' by the Bemsen -Realty Company,, commences in the south line of Carroll-street and runs thence easterly “along the southerly side of Carroll street,”, thus excluding- the. street. The description of the first parcel was followed by. the words: “ Also all the right, title and interest of the party of the first part of, in and to Carroll Streét and Utica Avenue, lying in front of and' adjoining said premises,-' to the centre lines thereof respectively,” and immediately after the description of the second parcel the following : “Also all the right, title and interest, of the party of the first part of, in and., to Carroll Street, lying in front of and adjoining said premises to the centre-line thereof.” She subsequently conveyed these lots to one Breivogel, who conveyed them to the Bemsen Realty Company, wliq claims to share- in the award. In these last conveyances the land is limited by the street line as in the conveyance to the appellant,-and the grantors did not assume to convey any title to or interest in the street: .
    
      George A. Voss, for the appellant.' - ' ■
    
      James F. Quigley [Archibald R. Watson with him' oh the brief], for the respondent The City of New York.
    
      Robert II. Haskell, for the respondent Bemsen Realty Company.
   Rich, J.:

■ - The city does not appeal, and the only question presented is Whether the court at Special Term had authority to alter -and change the report of the commissioners. The charter of (greater. New York (Laws of 1901, chap. 466, § 986), provides as follows: “The said court shall by rule or order, after hearing any matter which may be alleged against the same, either Confirm the said report in Whole, or in part, or refer the same, or a part thereof, to the said-commissioners for revisal and correction, or to new commissioners, to be appointed . by the said coiirt to reconsider the subject-matter-.therepf^and the said ■ commissioners to whom the said report or-,part thereof .shall lie so . referred shall return the same report or such- part thereof, corrected and revised, or a new report to be made by them in the premises to ' the said court without unnecessary delay; and the.same on being.so

returned shall be confirmed or again referred by the said court in manner aforesaid, as right and justice shall require, and so from time to time until a report shall be made or returned in the premises, which the said court shall wholly confirm.” Said section has been amended by chapter 658 of the Laws of 1906, but, so far as it is applicable to this case, no substantial change has been made. (See Matter of City of New York [West 162d Street], 125 App. Div. 485, 490 ; affd., 192 N. Y. 570.) The language of this; charter section is clear, and it will be seen that no authority is given the court to change the decision and report of the commissioners. The power is limited by the procedure created by the Legislature to returning the report and award to the commissioners, or to new commissioners for revision and correction. I think it was error, therefore, to direct the clerk to change the report in so material a matter, and as so changed to confirm it. It may be that, because the award is not challenged as to amount by either party, and no appeal is taken by the city, it is not a proper subject for our consideration and that we cannot upon this appeal determine whether a case is presented in which substantial damages should have been awarded, but in view of the conclusion I have reached, it is proper that I should state the conclusions of this court upon that subject. Assuming that the appellant acquired title to the street by- her deed, she was, after she conveyed to Breivogel, the owner of the naked fee only. She owns no property abutting on that portion of the street and for that reason is not subject to assessments for benefits. Her fee was subject to the right of ingress and egress over the land in the street, and in view of these facts a case is not presented in which substantial damages should have been awarded her. The city took from her a naked, unproductive fee, incapable of pecuniary advantage, useless, bereft of enjoyment and incapable of earning, and in the absence of reliable evidence establishing the contrary,-the land must as to her be held to have possessed nominal value only. The Eemsen company, because of its ownership of the abutting land, was assessed in a substantial sum for the improvement,-although it really obtained nó greater benefits after the street was made a public street than it possessed in the same land when it was a private street. We are unable to see how she was substantially damaged in taking the burdened fee, or

why the Remsen company should be inflicted with substantial' damages for the transfer of its easement rights in the private street to the same rights in a public street. (See Matter of City of New York, 196 N. Y. 286.) It appears that the claim-of the Remsen Realty Company to share in the award to be made for the damages was presented to the commissioners together with the title on which such claim was based, and should have been considered by them in determining who was entitled to the award. As was said by Judge Rapallo in Matter of Eleventh Avenue (81 N. Y. 436, 449), quoted approvingly by Judge Yanh in Matter of City of New York (supra): “ There would be manifest injustice in awarding the whole compensation to the owner of the fee, in view of the fact that such compensation is ultimately payable by the owners of the adjacent lots in the form of assessments-, while no part of these assessments is chargeable to the owners of the fee of the land taken. The adjacent owners would thus be compelled to pay full value fur a right of way* which, they already possessed. * * * If the compensation paid to the owners of the fee had been merely nominal it would have been equitable to adopt the same, rule in respect to the owners of.the easement.” The order must be reversed, without costs to either party in this' court, and the proceeding is remitted to the Special Term, with leave-to the city of Eew York or any party to move to- set aside the award and assessment, if any, and for a rehearing before the-commissioners, or others to be appointed in the.ir stead. If such motion is not made,, or if made and denied, application may be made by any party for a rehearing before the same or other com- ■ missioners to be appointed, to the end that further evidence, may be presented of the.title; of the appellant to the- land- lying in Carroll street, and as to any easement of the Remsen Realty Company therein ; the proportionate value of the respective interests, and as . to the amount to be assessed upon the abutting owners to pay for the improvement.

■ Jenes, Burr, Thomas and Carr, J'J., concurred.

Order reversed, without costs to either party in this court, and proceeding remitted to the. Special Term for disposition, in accordance with, opinión.  