
    In the Matter of the Application of William Einstein and Augusta E. Wendt, as Administrators with the Will Annexed of the Estate of Lewis Einstein, Deceased, Appellants, Respondents, for Payment of Awards Made for Parcels Nos. 118-122 on the Damage Map, and in the Report of Commissioners of Estimate and Assessment in Proceedings to Open Debevoise Avenue from Jackson Avenue to Ditmars Avenue, in the Borough of Queens, City of New York. The Comptroller and Chamberlain of the City of New York, Respondent, Appellant.
    Second Department,
    May 1, 1912.
    Eminent domain—street opening, Hew York city — award to “unknown owners ”—interest on award.
    Where, in a proceeding by the city of New York to acquire lands for the-opening of a street, the attempted specification in the commissioners’ report, of the names of the persons entitled to awards is so indefinite that the awards must be deemed to have been made to “ unknown-owners ” and the moneys are not paid into court as required by section 1003 of the city charter, interest should be allowed from a date one year from the confirmation of the commissioners’ report.
    Where the city is unable to determine from the commissioners’ award or the order confirming it the names of the persons entitled to awards, it is not in default until steps are taken, pursuant to section 1001 of the charter, to have the moneys paid into court and, therefore, it is. not liable for interest on the award for a period of six months from the date of the confirmation of the report.
    
      Appeals by William Einstein and Augusta. E. Wendt, as administrators, etc., and by the comptroller and chamberlain of the city of Hew York, from parts of an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 25th day of August, 1911, confirming the report of a referee.
    
      Merle I. St. John, for the petitioners.
    
      George E. Draper [Joel J. Squier and Archibald R. Watson with him on the brief], for the comptroller of the city of New York.
   Carr, J.:

In a proceeding begun by the city of Hew York to acquire lands for the opening of Debevoise avenue in the borough of Queens, the report of the commissioners made a number of awards to certain persons specified therein as follows: “David L. Einstein and others as Executors, etc. ” This report was confirmed by an 'order of the Supreme Court, entered on February 11, 1907. The awards, not having been paid in the meanwhile, the petitioners, who are the administrators with the will of Lewis Einstein, deceased, annexed, applied at Special Term for an order directing payment to them, as the parties thereto entitled, of the amount of said awards. A reference was ordered to take proofs and to report with an opinion. The referee reported in favor of the petitioners, with opinion that they were entitled to the awards, with interest thereon for a period of six months from the confirmation of the commissioners’ report, and likewise for the further period beginning one year after the date of said confirmation. The referee’s report was confirmed at Special Term only as to the allowance of the first period of interest, and was overruled as to the second period. There are cross-appeals from the order entered upon the referee’s report. The question of the allowance of interest under these circumstances is regulated by sections 1001 and 1002 of the Greater Hew York charter (Laws of 1901, chap. 466, as amd. by Laws of 1906, chap. 658) By section 1001 the city is made liable for interest for at least a period of six months from the date of the confirmation of the commissioners’ report in favor of ‘ ‘ the respective persons and bodies politic or corporate mentioned or referred to in said report ” as being awarded damages, but it is likewise provided that such shall cease at the end' of six months unless within that time a demand has been made for payment. By section 1002 it is provided that where awards have been made for damages and “ the name or names of the owner or owners, parties or persons entitled unto or interested in any lands, * * * taken for any of the purposes aforesaid shall not be set forth or mentioned in the said report of the commissioners of estimate,” it shall be the duty of the city to pay the amount of the awards into court, and in default of such payment into court the city is made liable for interest thereon from a date beginning one year after the final confirmation of the report of the commissioners.

On this appeal both the petitioners and the city contend in their briefs that the attempted specification in the commissioners’ report of the names of the persons entitled to the awards in question here was so indefinite as not to amount to any specification at all, and that the report is to be so considered as if the awards were made to “ unknown owners.” If so, and we think that this court is' bound to confine itself to the theory mutually agreed upon and deliberately asserted by both the respective litigants, then the order of the Special Term, so far as it disallowed interest from a date one year after the confirmation of the commissioners’ report was erroneous, for concededly the moneys were not paid into court as provided in section 1002.

This brings us, then, to the consideration of the question whether, under section 1001, interest runs on the awards for a period of six months from the date of' the confirmation of the commissioners’ report. It is the contention of the city on this appeal that interest does not run, under section 1001, on an award made to “unknown owners,” but runs only in favor of “ the respective persons and bodies politic or corporate mentioned or referred to in said report,” as the owners of the land taken in the proceeding. No precedent is cited construing this section on this precise question. In Matter of City of New York (Montgomery Street) (91 App. Div. 532) it was assumed, without decision and without any contention having been made by the. respective litigants then before the court, that interest upon the award would run in favor of “unknown owners ” for six months after the confirmation of the commissioners’ report. But it was there pointed out clearly that interest, if it ran at all, ran only as a penalty “ as damages for the wrongful act of the city in withholding payment.” There could be no wrongful act of the city in withholding payment unless it knew to whom it had to make such payment. The appropriate source of such information should be the commissioners’ report and the order confirming it. If these sources did not supply the information, then the city was not in default until steps were taken, as provided in said section, to have the moneys paid into court to await an inquiry and determination as to the persons who should he the payees.

The order of the Special Term might be justified on the theory that there was a suffidient specification in the commissioners’ report of the names of the payees of the award, hut such is not the theory of the respective litigants, and their rejection of it is not without apparent soundness.

The order should be reversed, without costs, and the matter remitted to the Special Term for an appropriate order in accordance with this opinion,

Jenks, P. J., Hirschberg, Thomas and Woodward, JJ., concurred.

Order reversed, without costs, and matter remitted to the Special Term for an appropriate order in accordance with opinion.  