
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Avenue L from the Easterly Side of Nostrand Avenue to the Westerly Side of Flatbush Avenue, in the Thirty-second Ward of the Borough of Brooklyn, in the City of New York. Westminster Heights Company, Appellant.
    
      Street opening in New York city — a property owner may tender a deed of land to be used therefor subsequent to the resolution directing the opening and before the appointment of the commissioners — effect of the corporation counsel deciding that a tender of the deed is too late.
    
    A tender, pursuant to section 992 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, and by Laws of 1904, chap. 370), of land included within the bounds of a street about to be opened in the city of New York, in order to relieve the property owner tendering the deed from, liability for the expense of opening the street, is in time if made subsequent to the passage by the board of estimate and apportionment of the resolution directing the corporation counsel to begin the street opening proceeding and before the commissioners of estimate and assessment have been appointed in such proceeding.
    
      ■'The fact that the corporation counsel erroneously decides that the tender of the deed was. made too late, does not render it improper for the court to grant a motion for the appointment of commissioners'of estimate and. assessment in the ¡street opening proceeding, if, in addition to the property owner tendering the •deed, there are other property owners.interested who have not tendered sucha ■deed, particularly as, under section 992 of the charter, the exemption granted ¡to the property owner, tendering the deed is not absolute..
    Appeal by the Westminster Heights Company from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 26th day of September, 1904, appointing commissioners of estimate and assessment in the above-entitled proceeding.
    
      Alexander McKinny, for the appellant.
    
      James F. Quigley [John J. Delany with him on the brief], for the respondent.
   Hirschberg, P. J.:

On April 3, 1903, the board of estimate and apportionment of the city of New York, pursuant to section 970 of the Greater New York charter (Laws of 1897) chap. 378, as amd. by Laws of 1901, chap. 466), passed resolutions directing the corporation counsel to •take the necessary legal steps for the opening and extending of Avenue L in- the borough of Brooklyn, from the easterly side of NTostrand avenue to the westerly side of Flatbush avenue. The resolutions duly recited that the board deemed it for the public interest that the title to the lands and premises required for the opening and extension of the avenue should be acquired by the city; and the corporation counsel was therein requested to make application for the- appointment of commissioners of estimate and assessment, and to take the necessary proceedings in the name of the city to acquire title “‘wherever the same has not heretofore been acquired.• The application for the appointment of commissioners of estimate and assessment was made at Special Term in Brooklyn on June 25,1904, and on the twenty-sixth day of September following the order appealed from was made granting the motion for the appointment of the commissioners. It recites the fact that the motion was opposed- by the appellant, but the only paper submitted by the appellant on the motion was an affidavit praying that the proceedings be “ amended by excluding therefrom that portion of Avenue L between the easterly side of Nostrand avenue and the center line of East Thirty-fourth Street.” The portion of Avenue L referred to was owned in fee by the appellant, but some time before the return day of the motion it had deeded the land to the city pursuant to the provisions of section 992 of the charter (as amd. supra, and by Laws of 1904, chap. 370), and claimed that in consequence of such conveyance the title had vested in the city, and the land was wholly free from the operation of the proceedings. The record does not disclose the time when the deed was delivered to the corporation counsel, but it appears to have been assumed by the court that the delivery was subsequent to the passage of the resolutions of the board of estimate and apportionment. On that assumption the court held that the appellant could not be relieved from asssessment for the expense of opening the residue of the street by conveying to the city its land required for the purposes of the improvement, unless the conveyance Was made before any proceedings whatever were taken by the municipal authorities, and before the action of the board of estimate and apportionment.

I think that the court was in error in holding, that the appellant’s deed was too late if tendered after the institution of the proceedings. It seems to have been in time if delivered before the appointment of the commissioners of estimate and assessment. The question is considered in Matter of Westminster Heights Co. (107 App. Div. 577), decided herewith, and need not be further discussed in this opinion. Nevertheless, it was the duty of the court to grant the motion for the appointment of the commissioners as there were other property owners interested who had not deeded to the city, and inasmuch as by the terms of section 992 of the charter (as amd. supra) the appellant, notwithstanding a valid and timely cession of its land to the city, would still be liable in the proceedings to an assessment for “ the due and fair proportion of the awards that may be made for buildings ” as a part of the expense of opening the residue of the street. It is true that the section of the charter last referred to further provides that after the making and acceptance of the conveyance no proceedings to open the lands so conveyed shall be taken or maintained, but it does not appear that the appellant’s deed was ever accepted, while every inference points to the contrary.. In any event .the .appellant is not aggrieved, but may establish the facts before the commissioners in "support of its claim to exemption from'assessment beyond the proper proportion of any awards which may be made for buildings.

The order should be affirmed.

Jenks, Rich and Miller, JJ., concurred; Bartlett J., not voting.

Order affirmed, with ten dollars costs and disbursements.  