
    In the Matter of the Application of Louisa B. Schneider for Payment of Award Made for Damage No. 2-D on the Damage Map in the Report of the Commissioners of Estimate and Assessment in Proceedings to Open East One Hundred and Fifty-seventh Street from Brook Avenue to German Place and from German Place to St. Ann’s Avenue, etc. Louisa B. Schneider, Respondent; David Peltz and Others, Appellants.
    First Department,
    July 10, 1916.
    Municipal corporations — city of New York — street opening—award to unknown owners — right of owners of private easements to award — appeal—right of city to retain award.
    Where the city of New York has taken a parcel of land for street purposes over which an abutting owner is entitled to easements and has made a nominal award to the owner of the fee and a substantial award to unknown owners, the abutting owner cannot compel the payment to her of the award to unknown owners, because when the land was taken for street purposes her private easements were not destroyed but were perpetuated.
    The city was not bound to avail itself of permission granted by the Court of Appeals to move to vacate the award. It could wait, as it did, until some other party moved and then see to it that the award was directed to be paid to the proper party and if not so directed it had sufficient interest to appeal.
    The city is entitled to retain the award until called upon to pay it to someone having a valid claim thereto.
    Failure to appeal from the order of confirmation of the award to unknown owners did not make it obligatory upon the Appellate Division to confirm the payment of the balance to the abutting owner.
    Appeal by David Peltz 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 30th day of July, 1915, confirming a supplemental and amended report of a referee in a proceeding to open a street,
    
      John J. Kearney, for the appellant City of New York.
    
      Samuel I. Frankenstein, for the appellant Peltz.
    
      Merle I- St. John, for the respondent.
   McLaughlin, J.:

This appeal is by the city of New York and one Peltz from an order directing the payment to the respondent of an award, except one dollar to Peltz, for damages in proceedings to open East One Hundred and Fifty-seventh street.

For the land taken, in so far as the same is involved on this appeal, the commissioners of estimate and assessment made an award to unknown owners of twenty-five dollars. The motion to confirm the award was opposed by Peltz. The motion was denied and the matter returned to the commissioners for revision and correction. Pursuant to this order a new report was made and filed, which awarded to unknown owners $3,360. This report was confirmed by an order of the Supreme Court. Some time thereafter the respondent instituted the present proceeding to compel the comptroller of the city to pay to her the sum awarded. A referee was appointed to take proof and report. He found that the respondent was, at the time of vesting of title in the city, the abutting owner and entitled to easements over the parcel, and, therefore, gave her the total award, except one dollar, which was directed to be paid to Peltz, the owner of the fee. The report was confirmed by an order of the Supreme Court, from which an appeal was taken by Peltz and another. This court affirmed so much of the order as directed payment to Peltz of one dollar and reversed so much of it as directed the payment of the balance to the respondent. (Matter of Schneider, 136 App. Div. 444.) In disposing of the appeal, Mr. Justice Scott, who delivered the opinion, said: “It is now definitely settled, as indeed has often been held before, that an abutting owner, under such circumstances as exist in this case, is not entitled to any award for his private easements in the land designated for a street, because when the land is taken for street purposes, his easements are not destroyed, but perpetuated. * * * It does not even appear in this case that the respondent Schneider ever paid the assessment. We consider it quite clear, therefore, that neither the owner of the bed of the street nor the owner of the abutting property was entitled to a substantial award, and we are unwilling, as was the Court of Appeals, * * * ‘to

take part in the division of a fund to which none of the claimants are justly or equitably entitled, so far as now appears. From the determination of this court both Peltz and Schneider appealed to the Court of Appeals, which also held that substantial damages were erroneously awarded; that no claimant was entitled to more than nominal damages, and that while the substance of the relief granted by the Appellate Division was in accordance with its view, the mode of accomplishing the same was not quite right; that the relief should be sought in the first instance by an ‘application in the condemnation proceedings to set aside the award and for the reduction of assessments. The order appealed from was, therefore, reversed, and the matter remitted to the Special Term, with leave to any party or the city of New York to move to set aside the award, for modification of the assessments, and repayments where assessments had been made, and for a rehearing before the commissioners or others to be appointed in their stead.; that if such motion were not made within sixty days, or if made denied, then application might be made by either party for a rehearing in this proceeding before the same or another referee. (199 N. Y. 581.) None of the parties moved to set aside the award within sixty days and an application was then made by the respondent for an order directing the payment to her of the award, less one dollar to be paid to Peltz, or in the alternative, that an order be made referring the matter for further proceedings in accordance with the opinion of the Court of Appeals. An order to that effect was made and a rehearing had, in which testimony was offered as to the value of the easement of the respondent. The referee reported that the appellant Peltz, as fee owner, was entitled to one dollar and that he was unable to state who, if any one, was entitled to the balance of the award. A motion was then made by the respondent to confirm his report in so far as it awarded one dollar to Peltz, to deny confirmation as to the balance of the award, and to direct the comptroller to pay that sum to hev. Her motion was granted and the appeal is from that order.

I think the order is right in so far as it confirmed the report as to appellant Peltz, but erroneous as to respondent. This court and the Court of Appeals determined upon the prior appeal that she was not entitled to the award. The record on this appeal is substantially the same as on the former appeal. It is true additional evidence was offered tending to show her damage, but that in no way changes the principle as to whether she is entitled to the award. It is contended in her behalf that the city is not an aggrieved party and had no right to appeal. It is true the city did not avail itself of the permission granted by the Court of Appeals to move to vacate the award. It was not obliged to do so. It could wait until some other party moved, and then see to it that the award was directed to be paid to the proper party, and if not so directed, it had sufficient interest to appeal.

In Matter of Hamburger (165 App. Div. 526) a motion to dismiss an appeal taken by the city was made on substantially the same ground as that contended for by this respondent. The motion was denied.

The respondent also contends that the failure to appeal from the order of confirmation of the award to unknown owners makes it obligatory on this court to confirm the payment of the balance of the award to her. A contrary view was expressed by this court in Matter of Hamburger (supra; affd., 216 N. Y. 643). What was said in that case is quite applicable here: “It is clear, however, that the petitioners have no claim, either legal or equitable, to be paid the award. * * * They may not claim it upon any theory that the private easements in the street have been taken, because they have not and at most there have been substituted for the private easements, public easements. * * * It may be that the city of New York is not entitled to retain the award, but it is so entitled until called upon to pay it to some one having a better claim thereto. The petitioners have no claim to it, and as they must succeed, if at all, upon the strength of their own claim rather than upon the weakness of the city’s title, the order appealed from was erroneously granted.”

In the present case the respondent, so far as appears, has no claim to this award. This court and the Court of Appeals have so held. She paid no assessment in the proceeding. She parted with title to her property in April, 1901. She did not then know of the pendency of the proceeding, or the possibility of an award being made. To direct the payment of the award to her, as is done in the order appealed from, is simply to make her a gift of such amount.

The order appealed from should be affirmed as to the appellant Peltz, with ten dollars costs and disbursements; reversed as to the respondent, with ten dollars costs and disbursements; her motion directing payment to her of the balance of the award denied, with ten dollars costs, and the report of the referee confirmed.

Olarke, P. J., Scott, Smith and Page, JJ., concurred.

Order affirmed as to appellant Peltz, with ten dollars costs and disbursements; reversed as to respondent, with ten dollars costs and disbursements; respondent’s motion denied, with ten dollars costs, and report of referee confirmed.  