
    In the Matter of Opening Belmont Street, from Clay Avenue to Morris Avenue, in the Borough of the Bronx. In the Matter of the Application of Harold Swain, Respondent, and Horace Anderson for Payment of Damage Parcels Nos. 9 and 10; The Corporation Counsel of the City of New York, Appellant.
    First Department,
    November 6, 1908.
    Municipal corporation—eminent domain —street opening, city of New York—award of interest after confirmation of report — failure of corporation counsel to oppose motion—city not estopped.
    Whether or no an owner whose land was taken on a street opening in the city of New York should have been allowed interest, where the commissioners have expressly refused to allow interest on their award and their" report has been confirmed on notice to the owner without opposition on his part, his only remedy is by appeal or by motion to set aside the report and have the matter remitted for correction.
    Such report denying interest, when confirmed by the court, is as final and conclusive as a judgment and binding alike upon the city and the owner until set aside or reversed.
    The court has no power to allow interest where it has not. been awarded by the commissioners, and hence cannot in a collateral motion for interest purporting" to be made under section 1001 of the charter, allow interest after the commissioners’ report has been confirmed even though the corporation counsel did not oppose the motion.
    The city is not estopped by the failure of its corporation counsel to oppose such motion, for the granting of the same was without authority in law.
    Appeal by the Corporation Counsel of the City of New York from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 20th day of April, 1908, denying the appellant’s motion to set aside an order in a proceeding, or to have the proceeding resulting in the order reopened and a rehearing had.
    
      John P. Dunn, for the appellant.
    
      Harold Swain, for the respondent.
   McLaughlin, J.:

In May, 1904, commissioners were appointed in the proceeding to acquire title to Belmont street from Glay avenue to Morris avenue. They subsequently made a report by which they awarded to the respondent, for damages to his premises designated as Nos. 9 and 10 on damage map of the commissioners of estimate and assessment, $7,500, and their report was confirmed by an order of the court on the 4th of December, 1907, and notice thereof given to the comptroller, with a demand for payment of the same, together with interest thereon from the 26tli of Bovember, 1906, the time when it is claimed the title to such parcels vested in the city. The award was not paid, and a motion was thereafter made under section 1001 of the Greater New York charter to compel the payment of the award, together with interest upon the same from the time stated. By reason of an oversight or neglect upon the part of the corporation counsel no opposition ivas made to the motion, and on February 5, 1908, an order was entered directing the payment, with interest from the time stated. The comptroller refused to obey the order upon the ground that it was improperly granted, and thereafter a motion was made to vacate the order directing payment of. the award and interest thereon, or to have the proceeding which resulted in the order reopened and the matter reheard de novo. The motion was- denied and the city appeals.

The .conclusion at which I have arrived renders it unnecessary to determine when the title to the parcels in question actually vested in the city, or whether or not the respondent is entitled to interest upon that award.

Nor is the fact that the city, after it is claimed that title vested in it, assumed control over the parcels and has since retained rents for them of any importance. Whether or not the respondent was entitled to interest depended solely upon the report of the commissioners of estimate and assessment. Section 990 of the Greater New York charter provides, among other things, 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 vesting of title in The City of New York, as aforesaid, from .said date to the date of the report of the commissioners of estimate shall he. allowed by the commissioners as part of the compensation to'which such owners, lessees, parties or persons are entitled.” Here, the commissioners not only did not allow interest to the respondent, but specifically reported that they did not do so. In their- report they said : “ We further report that we have not included in our awards for damage any interest on the same. * * * and have made no provisions in our assessments for benefit for any interest on the awards for the land's * * * lying within the lines of said. Belmont street between the westerly side of Topping Street and Morris Avenue.” (Parcels Nos. 9 and 10 on the Damage Map in the proceeding are included within these limits:) This report was, on notice to the respondent and without opposition on his part, .confirmed. If he were entitled to interest, he should have made such claim to the commissioners, and then, if they did not allow if,-he should have opposed the confirmation of the report. Not having done this, then his only remedy was to appeal or move to vacate and set aside the report and have the matter- remitted to the commissioners for correction. This is the .only way in which interest could be obtained. The -statute is the only authority by which interest can be allowed, and the court has no power whatever, in case interest is not awarded by the commissioners,, to allow it. To do so would be an illegal arid unauthorized use of public funds, and no act of the city would ¿stop it from asserting the samé when payment was sought to be enforced.' The report was confirmed' by the court, and, until set aside - or reversed, is a final and conclusive adjudication, bindiúg alike upon the city and the owner,'of the rights of the owner upon the one hand and the liability of the city upon the other. In this respect it is as conclusive as a judgment would be. (De Peyster v. Mali, 92 N. Y. 262.) The court has no power in a'summary and collateral proceeding, and, after the report has been confirmed, to add to it a provision increasing an award byway of interest. The order, therefore, by which interest was allowed was wholly irregular and contrary to law. Notwithstanding the fact that the corporation counsel did not oppose, either through inadvertence, neglect or for any other reason, the granting of the motion, the city is not estopped from insisting that its money shall only be used in the manner pointed out by statute.'

The motion, however, if it had been opposed, undoubtedly would not have been granted, and for that reason I am of the opinion that the order appealed from should he reversed, without costs to either party in this court, and the order of February 5, 1908, vacated, and upon condition that the city pay to the respondent all sums received by it for rent of the premises in question since November 26, 1906, and if such condition be not complied with, then the order should be affirmed; and if such order be vacated, the same be without prejudice to the right of the respondent to take.such proceedings as may be advised to compel the payment of the award made.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order reversed, without costs, and '.order vacated on conditions stated in opinion. 
      
       See Laws of 1901, cliap. 466, § 990, as amd. by Laws of-1903, chap. 418, and Laws of 1906, chap. 658.— [Rep.
     
      
       See Laws of 1901, chap. 466, § 1001, as amd. by Laws of 1906, chap. 658.— [Rep.
     