
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, etc., for the Purpose of Opening Grote Street, etc., from East One Hundred and Eighty-second Street to the Southern Boulevard, etc., in the Twenty-fourth Ward of the Borough of the Bronx, City of New York. In the Matter of the Application for Damages Caused by the Closing, Discontinuance and Abandonment of Former Kingsbridge Road from Prospect Avenue to Southern Boulevard and from Prospect Avenue to Crotona Avenue. Benjamin F. Gerding, as Executor, etc., of Mary McDonald, Deceased, and Others, Appellants; The City of New York, Respondent.
    First Department,
    April 4, 1912.
    New York city — opening street — damages to abutting owners from closing of street — interest on award -—amendment of report of commissioners of estimate and assessment.
    In a proceeding for the opening of a street in the city of New York, the commissioners of estimate and assessment, in estimating the damages to abutting owners from the closing of a street, pursuant to section 14 of chapter 1006 of the Laws of 1895, should ascertain the damages as of the date when the street was legally closed, with interest thereon down to the daté of then final report, less such sum as may he found to he the value of the restricted use of the property during so much of that time as it remained under the owner’s control.
    The fact that successive reports of the commissioners of estimate and ' assessment at intervals of several years contain exactly the same figures tends to show that no interest was allowed where there is no evidence of any depreciation of the property in the interim.
    Where the commissioners have failed to include interest in the award theh* report should he recommitted and amended.
    Appeal by Benjamin F. Gerding, as executor, etc., and others 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 23d day of December, 1910, confirming the report of commissioners of estimate and as ¿essment herein.
    
      Benjamin Trapnell, for the appellants.
    
      Joel J. Squier, for the respondent.
   Dowling, J.:

This proceeding for the opening of Grote' streej from East One Hundred and Eighty-second street to the Southern boulevard, in the borough of the Bronx, - city of New York, was instituted by the adoption of an appropriate resolution by the board of street opening and improvement on June 18, 1897, the original map having been filed November 2, 1895, ratified and approved by chapter 712 of the Laws of 1896. Commissioners of estimate and assessment were duly appointed herein December 29, 1897. Title to the property embraced in the proceeding vested in the city on November 27, 1901. Pursuant to the provisions of section 14 of chapter 1006 of the Laws of 1895 the petitioners, Franz Guth, Franz Yungling, Benjamin F. Gerding, as executor, Fred Flaccus and Charles Flaccus, made their respective petitions on March 15, 1904, praying that an order be made directing the commissioners theretofore appointed herein to ascertain and determine the compensation which should justly be made to them by reason of the discontinuance and closing of Grote street, and for the inclusion in their report of any award of damages therefor. The orders prayed for were duly made March 22, 1904. The property owned by the petitioners is designated upon the damage map by the following numbers: Gerding, No. 1; Guth, No. 2; Yungling, No. 3, and Flaccus, No. 6. On October 13, 1906, the commissioners made their preliminary report, wherein they awarded the following amounts as damages: To Guth, $598; to Gerding, $1,095; to Yungling, $588. They failed to make any award for the Flaccus plot. To this report exceptions were duly filed by the petitioners on the ground, among others, that “the commissioners should have allowed interest on each of the awards herein from October 31st, 1895, and an award without interest is a failure to make just compensation to your objectors. ” A supplemental report was made by the commissioners on April 16, 1908, wherein they awarded precisely the same sums to the three owners named and to the claimants Flaccus the sum of $1,400. To this objections were again filed by all four claimants, on the ground, among others, that “the Commissioners should have allowed interest on the award herein from the date of discontinuance and closing of said road, and an award without interest is a failure to make just compensation to your objectors.” The commissioners made their final report July 20, 1910, and by it made precisely the same awards as in their supplemental report. Thus, in a period of nearly four years, during which time they made three reports, the figures had never varied. It would seem apparent upon the face of these reports that interest has not been included in the awards. Three of the original awards were almost exactly in the amount of the damage as testified to by some one of the expert witnesses. Thus William I. Brown gave his opinion of the damage to the Guth parcel as $598.98 (award, $598); to the Yungling parcel as $588.22 (award, $588). Charles A. Berrian gave his opinion of the damage to the Gerding parcel as $1,098.92 (award, $1,095). These estimates were all based on the value as of January 30, 1895.

The learned court at Special Term in denying a reargument of the motion to confirm the commissioners’ report based on the claim that the awards were insufficient, as not including interest, said: “ The Commissioners thus gave these claimants substantially what they asked for, which was the damage, without interest; nor was there any increase in the awards to represent interest during the long period that elapsed between the provisional and final estimates.”

He also said: “ It is quite probable that they [claimants] had the use and occupation of the property, and that the use was beneficial.” The fact was not referred to that the owners had continually insisted on their right to interest. Nor were they in any way responsible for the long delay in the proceeding. There was no proof whatever that they used the property, which was unimproved, or that any use thereof had been beneficial to them. The city contends that the commissioners may have offset the valúe of the use and occupation of the vacant land against the interest; but it is sufficient answer to this to say that not only is it fairly deducible from the reports that no interest was allowed, but there was in any event ho proof of the value of any use or occupation which could be charged against it. Nor does the fact that the commissioners report that they have made awards representing “ full compensation for all damages ” determine the question, when it is apparent that they have included no interest as part- of -the award. , In Matter of Mayor (40 App. Div. 281) it was-said: “Upon both principle and authority the property owners were entitled to the cash value of their lands upon the 9th day of January, 1895, and the obligation of the city to pay that cash value (when ascertained) as of. that date then accrued. Upon that obligation the right of interest rests. If the property owners were then entitled to their money, they were equally entitled to its use or to the legal substitute for its use.” That case was followed in Matter of Riverside Park (59 App. Div. 603; affd., 167 N. Y. 627). So in Matter of Minzesheimer (144 App. Div. 576; affd., 204 N. Y. 272) it was held that the legal closing of a street under the Street Closing Act involves the destruction of the abutter’s 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 he included in one sum without ' designating how much is allowed for loss and how much for interest. In the case at bar it cannot be seriously contended that the award includes both damage and interest. The fact that successive reports at intervals of several years contain exactly the same figures demonstrates that no interest was allowed, as there was no proof of any depreciation of the property in the interim. If interest had been included, the award for damages would have been far below the testimony of the city’s expert. The claimants were entitled to the amount of their damage as of November 2, 1895, the date when the street was legally closed (Matter of Mayor, etc. [Grote Street], 139 App. Div. 69), with interest thereon down to July 20,1910, less such sum as might be found to be the value of the restricted use of the property during so much of that time as it remained under the owner’s control. (Matter of Mayor, 40 App. Div. 281.)

The order appealed from must, therefore, be reversed, with , ten dollars costs and disbursements, and the motion to confirm the report of the commissioners denied, with ten dollars costs and the report recommitted to the commissioners with instructions to report specifically whether or not they had included any allowance for interest in their awards; if so, to state what amount, if any, they have allowed against the same for the use of the property; and if they have not allowed any interest upon the amount of damages found, then to amend their report by including the same in their award.

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to confirm report denied, with ten dollars costs, and report recommitted to commissioners as stated in opinion.  