
    In the Matter of the Application of William H. Snyder, Appellant, for Payment of Award Made for Parcel No. 24 on the Damage Map and in the Final Decree of the Supreme Court as to Damage and Benefit in the Proceedings to Acquire Title to Two Hundred and Forty-first Street from Carpenter Avenue to White Plains Road, in the Borough of Bronx, City of New York. Frank J. Taylor, Comptroller of the City of New York, Jean Nelson Penfield, Individually and as Executrix, etc., of William W. Penfield, Deceased, and George Brouse, Respondents.
    First Department,
    October 30, 1936.
    
      
      Theodore Studwell, for the appellant.
    
      Jean Nelson Penfield, respondent in person and for the respondent George Brouse.
   Per Curiam.

To compel the petitioner to try the issues respecting his title to the tax lien in the foreclosure action against that portion of the property not taken in condemnation would be tantamount to compelling him to resort to the unacquired portion before looking to the award in condemnation. This may not be done. (Matter of City of New York [Neptune Ave.], 271 N. Y. 331; Matter of City of New York [Houghton Ave.], 266 id. 26.)

The order appealed" from, therefore, should be reversed, without costs, and petitioner’s application granted to the extent of referring the issues raised by the petition and answer as to title, final decision on the motion meanwhile to be held in abeyance and to be decided upon the coming in of the referee’s report by the justice then and there presiding at Special Term, Part 1.

Present—'Martin, P. J., O’Malley, Untermyer, Dore and Cohn, JJ.

Order unanimously reversed, without costs, and petitioner’s application granted to the extent of referring the issues raised by the petition and answer as to title, final decision on the motion meanwhile to be held in abeyance and to be decided upon the coming in of the referee’s report by the justice then and there presiding at Special Term, Part 1. Settle order on notice.  