
    In re ST. NICHOLAS TERRACE. In re PENTZ et al. In re SHAFER.
    (Supreme Court, General Term, First Department.
    February 16, 1894.)
    Condemnation Proceedings—Apportionment of Award.
    Where deeds of lots abutting on a street conveyed to the grantees only the ordinary easements in the street, the fee of which remained in the grantor, and both easements and the fee of the street are subsequently taken in condemnation proceedings, the award will be apportioned between the owners of the fee and the persons to whose lands the easements were appurtenant.
    Appeal from special term, New York county.
    Petition by John F. Pentz and others to determine the title of certain awards made to unknown owners. From an order confirming the report of the referee in favor of petitioners, Ira Shafer, claimant, appeals. Reversed.
    This is a proceeding to determine the title to certain awards made to “unknown owners’’ for land taken for the opening of St. Nicholas terrace, in which the petitioners, John F. Pentz and others, and the claimant, Ira Shafer, are adverse claimants to the award for certain parcels. The same petitioners, and William R. Hutton and others, executors, are adverse claimants to the award for certain other parcels in another proceeding. The questions presented are the same in both cases, and arise upon the same facts, and may be disposed of together. Prior to January, 1863, Smith Barker, as executor and trustee under the will of John Pentz, deceased, became the owner of a tract of land which included the parcels to which the awards for damage in controversy were made; the land being included within the boundaries of a street called “Pentz Street,” which was laid out in the year 1872 by Barker, who caused a map of the Pentz tract to be made, by which it was laid oft in numbered city lots, fronting on streets and avenues designated thereon. It is ■conceded that Pentz street was never laid down upon any of the official or ■permanent maps of the city; neither upon that of 1811, made by the commissioners of streets and roads, under the act of 1807, nor later upon that of 1868, made by the Central Park commissioners, under chapter 697 of the Laws ■of 1867; nor was it ever subsequently accepted or adopted by any department' ■of the city government. It has never been graded or improved, nor used by the public or private owners. St. Nicholas terrace, as laid out in 1891, intersected Pentz street, and the awards in question were made for that part of the latter street included within the lines of this terrace. After filing the map of the Pentz tract, Barker, as executor, conveyed many of the lots embraced in said map by the numbers by which they were designated thereon, .and by descriptions bounding the lots by Pentz street and 139th street, as laid ■down thereon. By reference to the Hutton deeds, which contain four separate descriptions, and to the ICilpatrick-Shafer deeds, which contain two ■separate descriptions, it will be noticed that in all of the deeds the property is conveyed by lot numbers as appearing upon the map filed by Barker; but this is followed by a description giving the boundaries by courses and distances.
    ' Argued before VAN BRUNT, P. J., and O’BRIEN and FOLXETT, JJ.
    John C. Shaw, for appellants.
    James A. Deering, for respondents.
   PER CURIAM.

We are satisfied that under the conveyances the naked fee of the strip of land called “Pentz Street” was retained in the Pentz estate, and under them abutting owners acquired simply the ordinary street easements over this strip; and, the city having condemned these easements and the fee, that the .amount awarded must be apportioned between the six abutters and the owners of the fee, for the reasons and upon the principle stated in the opinion in Re Opening Eleventh Ave., 81 N. Y. 446. _ The .awards, therefore, should be equitably apportioned between the ■owners of the fee and those persons to whose lands the easements were appurtenant. The orders should accordingly be reversed, .and the case sent back to the referee, in order that an apportionment may be made, with costs to appellants, to be paid out of the .awards.  