
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to East One Hundred and Seventy-eighth Street (Although Not Yet Named by Proper Authority), from La Fontaine Avenue to Hughes Avenue, in the Twenty-fourth Ward, Borough of The Bronx, of the City of New York. George Pumphrey and Lemuel E. Evans, as Executors, etc., of Mary S. Pumphrey, Deceased, and Others, Appellants.
    
      Street opening in New York city — by what statute governed —■ interest upon awarrds included in the assessment for benefits.
    
    Where, pursuant to a resolution of the board of street opening, and improvement of the city of New York, adopted prior to January 1, 1898; the date on which the Greater New York charter took effect (Laws of 1897, chap. 378), a proceeding to open a street in said city is commenced, subsequent to that date, such proceeding is governed by the provisions of the Greater New York charter and not by the provisions of the Consolidation Act (Laws'of 1882, chap. 410). ' ,
    
      Under the provisions of the Greater New York charter, the commissioners of estimate and assessment appointed in the proceeding may include in the assessment for benefits the interest allowed pursuant to section 990 of the Greater New York charter upon the awards, made by them for property taken in the . proceeding.
    Appeal by George Pumphrey and another, as executors, etc., of Mary S. Pumphrey, deceased, 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 16th •day of March, 1903, confirming the report of commissioners of estimate and assessment in the above-entitled proceeding.
    
      John C. Shaw, for the appellants.
    
      John P. Dunn, for the respondent.
   Ingraham, J.:

This proceeding was to acquire title to certain property necessary for the opening of East One Hundred and Seventy-eighth street, in the city of New York. The commissioners of estimate and assessment allowed to the owners. of the property interest upon the awards made by them Horn July 20, 1900, the date of the vesting of the title to the property to be acquired, to the date of their report, October 7,1902, and included such interest in the assessment upon adjoining property.

The sole question presented upon this appeal is whether the commissioners of estimate and assessment were justified in including such interest in the assessment for benefit. This proceeding was instituted pursuant to a resolution of the board of street opening and improvement, adopted June 18,1897, prior to January 1,1898, when the charter of 1897 (Laws of 1897, chap. 378) took effect. The proceeding, however, was commenced by an application made at Special Term on September 15, 1898, after the charter of 1897 took effect. On the 8th day of May, 1899, an order dated the loth day of September, 1898, was duly entered, by which commissioners of estimate and assessment were appointed, and the oaths of these commissioners were duly filed on. June 7, 1899. On June 12, 1899, the commissioners published in the City Record a notice of their appointment, required by section 978 of the charter, and in pursuance of that notice the commissioners met, and after hearing all testimony in reference to the claims filed by the various property owners and on behalf of the city of New' York they signed and filed their preliminary report in the bureau of street openings' on the 21st day of March, 1902. On July 20, 1900, pursuant to a resolution- of the hoard of public improvements, the title to the property vested in the city of New York.

Objections to this preliminary report were filed by certain property owners who were assessed for benefit, on the ground that the commissioners included in the assessment interest upon their awards from the date that title vested in the city to the-date of their final report. These objections were overruled by the Special Term.

In Matter of Mayor (40 App. Div. 452; affd. on opinion below, 161 N. Y. 622) this court held that where proceedings were instituted and all the valuations, whether of property taken or of property benefited, fixed before the charter of 1897 took effect, such proceedings were governed by the Consolidation Act (Laws of 1882, chap. 410, as amd.), and were'not under the charter,, and that position was reaffirmed in Matter of East 175th Street (49 App. Div. 114; affd. on opinion below, 162 N. Y. 661);,, and in Matter of Mayor (In re Cromwell Avenue) (96 App. Div. 424). In all these cases proceedings were commenced and commissioners of estimate and assessment were appointed prior to the 1st day of January, 1898, when the charter of 1897 took effect. These cases do- not apply, as this proceeding was not commenced until after the new charter took effect. The fact that the board, of .street opening and improvement authorized the city to take proceedings for the opening of this street prior to the date that the charter took effect had no effect upon -the proceedings so as -to make the provisions of the Consolidation Act in force prior to the time, that the charter, took effect applicable. It is the service of the application for the appointment, -of commissioners of estimate and assessment that, -is the commencement of the proceeding. Prior to that time the property was not in anywise affected. The title of the. property to- be acquired still vested in the owner. The only -effect of the resolution of the. board of street Opening and improvement was to authorize the legal representatives of the city to -commence proceedings to acquire the title to the property necessary for the opening of the street, which had been laid out, many years before upon- the maps of -the city. Until such proceedings were actually commenced nothing had been done that affected the title to the property. These proceedings having been commenced after the charter of 1897 took effect, that charter applied and the right of the commissioners to include interest in the award to the owners of property taken, and to impose the amount paid for interest in the assessment for benefit is to be determined by its provisions.

Section 990 of the charter of 1897 provides that the board of public improvements may direct that the title to any piece or parcel of land lying within the lines of any street to be opened shall be vested in the city of New York; that in such cases interest at the legal rate upon the sum or sums to which the owners, lessees, parties or persons are justly entitled upon the date of the vesting of title in the city of New York from said date to the date of the report of the commissioners, shall be allowed by the commissioners as a part of the compensation to which such owners, lessees, parties or persons are entitled. Where the title had been vested in the city of New York prior to the date of the report of the commissioners the-commissioners are required to fix the value of the property at the time it vested and then to award to the owners as the value of the property the amount thus fixed with interest on that sum from the date the title vested until the date of the report; and the amount thus fixed as the value of the property at that date plus the interest is the value, of the property at the time the report is filed. In no other way could the constitutional provision (Const. art. 1, § 6) by which private property could only be taken upon payment of its-value be complied with. Interest thus being a part of the compensation to be paid for the property taken for opening the street, which the city was required to pay under section 1003 of the charter of 1897, such interest was money paid by the city, which was directed to be assessed equally and proportionately upon the lands and premises benefited by the improvement. We think, therefore, that the commissioners were justified in including in the assessment imposed for benefit the amount paid to the owners, including the interest.

It follows that the order appealed from must be affirmed, with, ten dollars costs and disbursements.

O’Brien, P. J., Patterson, McLaughlin and Hatch, JJ.,. concurred.

Order affirmed, with ten dollars costs and disbursements.

■ • (¡tejes DETERMINED IN THE .. FOURTH DEPARTMENT IN THE ‘i , . APPELLATE DIVISION, gitlav 1905.  