
    MORNING SIDE PARK CASE.
    
      Supreme Court, First District;
    
    
      Special Term, December, 1870.
    Awards.—Application to Set Aside.
    Under the act of .1813 (§ 178, Act of 1813, Valentine’s Laws, p. 1198), any objection to the awards or assessments of the commissioners in a local assessment in the city of New York, must be made before the confirmation of the commissioners’ report.
    
      It seems, that the court has no power to alter the report, it being for the commissioners to alter or correct it in accordance with the directions of the court.
    When the report is confirmed, the commissioners are fundi officio, and a motion to correct the report cannot be granted.
    If the owner of land which is taken means to rely on the report as originally prepared, he must see that it is not, at the instance of any subsequent claimant, altered to his prejudice.
    The proceedings under the act of 1813 (supra) explained.
    Motion to set aside an order.
    This was a motion made to set aside the order confirming the report of the commissioners of estimate and assessment, appointed on the application of the commisioners of the Central Park, for the opening of the Morning Side Park, so far as it related to the five lots hereinafter mentioned, and which were taken for said park ; and also for an order directing the commissioners to make the awards for those lots to Patrick Callaghan, or unknown owners. The report of the commissioners was confirmed July 28, 1870, and contained awards to Phineas H. Kingsland and Wesley Smith, as the owners of five leases of the lots, executed to them by the mayor, aldermen, and commonalty of the city of New York for the term of a thousand years, in pursuance of sales for unpaid taxes' and assessments, and a nominal award Of one dollar to Patrick Callaghan, the owner of the fee.
    It appeared that the award had first been made, by the commissioners, to Mr. Callaghan, and afterwards changed to unknown owners, and subsequently, when Mr. Kingsland and Mr. Smith presented their claims before the commissioners, they changed the award, and made their report as above stated.
    The report, as first made, was examined by Mr. Callaghan, and finding the awards given to him, he went away to California, and he alleged that he had no notice that the awards had been changed.
    It also appeared that a Mrs. Currie had, in August, 1870, commenced an action of ejectment, claiming that she was the owner in fee of three of the lots, in which action the mayor, aldermen, &c., Mr. Kingsland, and Patrick Callaghan were made defendants.
    
      T. J. Glover, for Patrick Callaghan.
    
      Henry Parsons, for Mr. Smith.
    
      Abraham P. Lawrence, Jr., for P. H. Kingsland.
    
      David J. Dean, for the mayor, aldermen, &c.
   Brady, J.

The proceedings in reference to improvements under which the assessments and awards were made and imposed in regard to the Morning Side Park are regulated entirely by statute.

It is provided that when the report of the commissioners is presented to this court for confirmation, after hearing any matter which may be alleged against it, it is either to be confirmed or sent back to the commissioners for revisal or correction, or to new commissioners to be appointed by this court, to reconsider the subject matter thereof. And the commissioners to whom the report shall be so referred shall return the same corrected and revised, or a new report to be made by them in the premises, to this court, without unnecessary delay ; and the same, on being returned, shall be confirmed or again referred back as right and justice shall require ; and so from time to time, until a report shall be made or returned in the premises which this court shall confirm; but such report, when so confirmed, shall be final and conclusive, and the mayor, aldermen, and commonalty, shall become and be seized in fee of all the lands, tenements, and hereditaments in the report mentioned (§ 178, act of 1813, Valentine’s Laws, p. 1198).

By the provisions of the act of 1862 (Laws of 1862, p. 966 ; Val. Laws, 1232), it is the duty of the commissioners to deposit with the street commissioner an abstract of their estimate and assessment, at least forty days before their report shall be presented for confirmation. It is also their duty to publish a notice for thirty days in two of the daily newspapers published in this city, stating the intention to present their report for confirmation to this court at a time and place to be specified in the notice, in order that all persons interested in such proceedings, or in any of the lands affected thereby, having objection thereto, shall file the same in writing with the said commissioners within thirty days after the first publication of such notice ; and further, that they will hear such objections within the ten week days next after the expiration of the thirty days during which publication is to be made.

After considering the objections, if any, and making any correction of their estimate or assessments which they shall find to be just and proper, they shall present their report to the court at the time and place . specified in the notice already referred to.

It thus appears that the proceedings are regulated by statute, as already suggested, and the power of this court defined.

The report may be sent back as often as this court may deem proper before it is confirmed or new commissioners appointed,—as often as may be deemed just, —in order that the rights of all parties maybe protected and a proper report obtained.

It is foi' the commissioners to make, however, the alterations or corrections, in accordance with the principles laid down by the court for their guidance.

The court cannot make them directly ; but if there be any doubt about this proposition, there is no doubt, in my judgment, that the power, if possessed, must be exercised before the report is confirmed.

When it is confirmed, the commissioners no longer exist. The advertisement of the intended presentation of the report of the commissioners and the right, during a period of thirty days, to present objections, which the commissioners must consider and act upon, are designed, not only to give all persons interested in the • lands affected the opportunity to guard their interests by calling the attention of the court to the act or omission complained of, but .also to advise this court whether, in the performance of their duties, the commissioners have acted illegally or oppressively, or have made a mistake, error or miscalculation, to be shown by the objections presented.

These provisions are full and ample for the object in view, and, by their comprehensive and conservative char acter, and in the absence of any expression to the contrary, indicate very clearly that it was the intention of the legislature to make the confirmation of the report of the commissioners, as they have declared it shall be, final and conclusive in reference to their proceedings, as between the commonalty of New York and all persons whomsoever in reference to the land taken and the estimate and assessments made and imposed. All persons are thus advised, that, being given the opportunity to be heard, they must appear, and by objection, either to the commissioners or submitted to this court, protect whatever rights are invaded or jeopardized.

The applicant does not seem to have presented any objection either to the commissioners or to the court.

It may be said that the award having been made to him in the first instance, he was justified in relying upon that entry and the abstract of the report; but such a course of conduct was erroneous. The object of the publication of notice would be defeated if the abstract could not be altered, and it was the duty of the applicant to see, if he meant to rely upon it as originally prepared, that it was not, at the instance of any subsequent claimant having even an apparent title, altered to his prejudice.

The alteration or correction may be made according to the statute {supra), at any time before the report is presented to the court after publication, and in this case the alteration appears to have been made at the proper time.

There is no evidence of its having been made subsequent to its presentation. Although the report, having been confirmed, is final and conclusive, as already stated, in regard to the estimate and awards, it is not conclusive upon the rights of claimants inter sese. The act of 1813 {supra), provides that an action may be brought against the person to whom the award was given, after payment thereof to him by the person to whom, of right-, the money paid belonged, notwithstanding snch report.

This application must be denied, therefore, upon the ground that the confirmation of the report was final, conclusive, and the end of the proceeding; that the commissioners are functi officio, and that this court has not the power to alter the report or send it back to the commissioners for correction.

The applicant is not, however, withoutremedy. He can by action accomplish the object of this application, and, by the interposition of the equity power of this court, successfully protect his rights, if it be true, as alleged, that the lease executed by the city authorities on the sale for taxes was a nullity.

In the view thus presented of the question involved, it is not necessary to consider whether the commissioners were right in recognizing the lease presented, and changing their award ; but, nevertheless, I think it was sufficient to justify them (Masterson v. Hoyt, 55 Barb., 520); although, when there are adverse claimants, it it is the proper and the better course to award to unknown owners.

Ordered in accordance with the conclusions stated.  