
    In the Matter of the Application of Henry Edelmuth, as Executor, etc., of Adolph Edelmuth, Deceased, Respondent, for a Peremptory Writ of Mandamus Directed to William A. Prendergast, as Comptroller of the City of New York, Appellant, Comanding and Enjoining Him to Pay the Award, etc., in Proceedings to Open Walton Avenue, from East 167th Street to Tremont Avenue, in the 23rd and 24th Wards of the City of New York.
    First Department,
    February 3, 1911.
    Eminent domain — municipal corporations —street closing, city of New York— charter construed — date on which award is payable — interest — demand — appeal —■ stay.
    Sections 1001 and 1002 of the charter of the city of 5Tew York, relating to the payment of awards on street openings are not applicable to the payment of damages caused by the closing or discontinuance of a street, even though the street closing proceeding be carried on in conjunction with one for opening a street.
    
      The payment of damages caused by the closing of a street is governed by section 11 of chapter 1006 of the Laws of 1895, although the proceeding b6 carried on in conjunction with one for opening a street, and, as this section provides that the award shall be paid to the persons entitled thereto within thirty days after demand made, interest does not begin to run until thirty days .after demand for payment.
    Although an appeal by the city from an order confirming an award in a street closing proceeding stays any attempt to enforce payment of the sward by virtue of section 1814 of the Code of Civil Procedure,"the right to jnake demand for payment of the award is not staj^ed, and, hence, the pendency of such appeal is no excuse for not, malting a demand for the purpose of fixing the date from which interest will accrue.
    Clarke, J., dissented.
    Appeal by William A. Prendergast, as comptroller of the city of York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1910". •
    
      Joel J. Squier, for the appellánt.
    
      Benjamin Trapnell, for the respondent..
   Scott, J.:

This is an appeal by the comptroller of the city of New York, from an order for a peremptory writ of mandamus requiring him to pay the relator an award, with interest.- , .

The controversy is as" to the amount of interest to be’.paid. In the proceeding for opening Walton avenue, Henry Edelmuth obtained, an order on'July 17, 1903, pursuant to section 11 of' chapter 1006 of the Laws of 1895, directing the commissioners of estimate and assessment to take testimony and ascertain the compensation which should be made for the damages, if any, to the premises belonging to the petitioner caused by the closing and discontinuance of Seventh avenue. . Pursuant to this order and the direction of the statute above cited, the commissioners duly made and filed a report, dated December 5, 1905, awarding the sum of1 $9,010 as the damage suffered by petitioner’s land. ■ This report was confirmed at Special Term on June 'll, 1906. From the order of confirmation the city appealed successively to this court and to the Court of Appeals (Matter of Mayor, etc., Walton Avenue, 131 App. Div. 696 ; 197 N. Y. 518), with the result that the order of confirmation was finally affirmed by the latter court, on November 10,1909. On July 10, 1’910, the petitioner for the first time served a demand on the comptroller. The order appealed from directs a mandamus to issue requiring the comptroller to pay the award, with interest from December 5, 1905, the date of the report of the commissioners. The order is attempted to be upheld upon the theory that, by section 14 of the act of 1895, the provisions of sections 1001 and 1002 of the Greater New York charter (Laws of 1901, chap, 466, as amd by Laws of 1906, chap. 658) relating to the payment of awards for street openings are made applicable to awards for street closing, and support for this view is claimed to be found in certain expressions contained in the opinion of this court in Gillender v. City of New York (127 App. Div. 612). What we decided in that case was that private easements in the bed of a street were the' private property of the owner of the abutting property, of which he could not be deprived by the closing of the street without compensation, and that since the law made no provision in such a case for the vesting of title in the .city before the confirmation of the report of the commissioners in condemnation the city could not appropriate and destroy these private easements until the owner’s damage had been ascertained, and its payment assured by confirmation of the commissioners’ report. What was said as to the law governing the payment of awards for the extinction.of such private easements was merely by way of argument and illustration, and was hot decisive of any question then actually before the court. The Street Closing Act of 1895 is quite distinbt from the charter provisions relative to street openings. The only relation between the two is the provision in section 14 of the former act that when a proceeding has been instituted for opening a street or other public place laid out upon the general or permanent plan of the city of district,which is contiguous to or in the neighborhood of a street or public place which has been discontinued, and no proceedings have been had to ascertain the damage caused by such discontinuance, the court may, in its discretion, upon motion of the city or any party interested, refer it to the same commissioners of appraisal or of estimate and assessment appointed in the street opening proceeding to ascertain and determine the compensation to any person who may have been damaged by the closing of the' street or public place referred to. It is then provided that: “ The proceedings to ascertain and. determine the same shall be conducted and . completed in accordance with the provisions of existing laws relative to the opening of the street or avenue for which the said commissioners were appointed.” . It has already been held that the effect of this section is not to merge or consolidate the two proceedings, but that the proceedings for opening streets are quite' distinct and separate from those for closing them; that the provision for referring both matters to one set of commissioners is merely for the sake of convenience and economy, and that the commissioners need not include all their awards, both for opening and closing,, in one-report, but may, and in some cases should;, make separate reports. (Matter of Mayor, etc., 87 App. Div. 177.) All that the section above cited requires is that “ the proceedings to ascertain and determine” the amount of damages' shall conform to existing laws for street openings. This regulates the proceedings before the commissioners and is intended to-constitute a guide and rule for them and its force is wholly spent when the damages have been “ascertained and determined,” which- is when the commissioners have tiled their report and it has been confirmed.

The question when and how the awards shall be paid has nothing to do with their ascertainment and determination. In my opinion,' therefore, the provisions of sections 1001 and 1002 of the charter as to the payment of awards for. street openings have not been imported into the Street Closing. Act and made applicable to the payment of awards for the closing of streets. Section 11 of the last named act (Laws of 1895, chap. 1006) provides for the payment of such awards by a provision which- certainly applies to independent proceedings to close a street, and I think equally applies in cases when a proceeding for closing a street is carried on in conjunction with one -for opening a street. ■ This section provides that such awards shall be paid to the person or persons entitled thereto within thirty days after demand therefor, in default of which application may be made to the court for an appropriate order to compel payment. This I think determines the period from which interest must be allowed. The Legislature clearly intended that the city, should pay with reasonable promptness, but devolved upon the claimant the duty of putting the city in default by making a proper demand., and, as I consider, the proper rule for the allowance of interest in such cases is to estimate it from a date thirty days after a demand has been made. The petitioner made no demand until July 10, 1910, which as I construe the statute would limit his interest to such as accrues'from August 9, 1910, to the date of payment. He seeks to excuse his failure to make an earlier demand by the circumstances that his proceedings were stayed pending the appeals by the city, and lie cites section 1314 of the Code of Civil Procedure to sup. port this position. That section provides that upon an appeal taken by a domestic municipal corporation “ the service of the notice of appeal perfects the appeal and stays the execution of the judgment or order appealed from.” Undoubtedly the pendency of the appeals would have been a complete bar to any attempt to enforce the payment of the awards, but the service of a demand would have constituted no part of an attempt to enforce payment. At the most it would have merely laid the necessary foundation for a proceeding to be begun when the bar of the appeal had been removed, and it would also have served to put the city in default and start the running of interest upon the award.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin and Miller, JJ., concurred ; Clarke, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  