
    In the Matter of Opening One Hundred and Eighty First Street.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Eminent domain—Lands taken for streets—Modification of order CONFIRMING REPORT.
    An order confirming the report of commissioners of estimate and assessment in street opening cases is a judgment of the court, and in a proper case the court has power to modify the same.-
    2. Same—Relief of property owner.
    Where it appears that no award was made for land taken for the street which belonged to an owner who failed to appear before the commissioners, the court may properly, on motion of such property owner, open the order of confirmation so far as to allow the presentation of a claim for an award for such land, hut on condition that the claim shall he limited to the value of the land at the time of the original assessment, and not include improvements since made.
    Appeal from order partially opening order confirming the report of commissioners.
    
      James A. Jeering and Walter S. Logan, for app’lts; Peter B. Olney and D. J. Dean, for resp’t.
   Van Brunt, P. J.

The papers upon appeal in this case show a clear mistake in reference to the failure to make an award for the land of the appellant Fitzgerald taken for the opening of this street; and that in some form she should have redress seems to be apparent. It is unjust, however, because of this mistake, in which she participated, that she should be placed in a better position than she would have occupied had she appeared before the commission at the time they were assessing the value of the property to be taken and presented her claim.

There is no question of fact upon either side and it is apparent that the land of the appellant should not be taken without compensation.

As an insuperable objection it is urged upon the part of the appellants that the order cannot be partially set aside; but that if any relief whatever is granted the whole proceeding confirming the assessment must he vacated.

Although there is some force in this objection, yet as an order confirming a report of commissioners of estimate and assessment is a judgment of the court, we see no reason why in a proper case the ordinary power of the court to modify its decrees should not be possessed by the court awarding this judgment.

It is further claimed upon the part of the. appellants that relief should'not be granted to Fitzgerald, because the granting of such relief would operate as an injustice to them, in that the property taken for this improvement since the original proceedings were instituted and the original appraisals made has increased in value and for such increase the assessment must be levied upon them, which they would not have been required to pay had the mistake not occurred. And they claim that they should not be called upon to suffer by reason of the error by which no award was made to the respondent Fitzgerald.

We think this position is well taken, and that they should not he compelled to pay for the land of the respondent at an advance if it has risen in value since the time at which its value would have been assessed had it been regularly considered in the proceedings for condemnation. The respondent, applying to the court, as she is, for a favor, as a condition of the granting of that favor should be compelled to protect the rights of th'e persons who will be assessed in these proceedings for the land of the respondent Fitzgerald which has been taken.

We think, therefore, that the order appealed from should be modified so as to compel the respondent Fitzgerald as a condition of granting her relief to stipulate to claim before the commissioners only the value of her land as it existed at the time of the original assessment, and not its value at the present time; and as thus modified the order should be affirmed, without costs. Daniels and Beady, JJ., concur.  