
    In the Matter of the Application of The City of New York, Appellant, Respondent, Relative to Acquiring Title to the Lands, etc., Required for the Purpose of Opening Titus Street from Jackson Avenue to East River, in the First Ward, Borough of Queens, City of New York. Frank Andre and Others, Appellants, Respondents; Cabinet Land Company, Respondent.
    Second Department,
    October 11, 1912.
    Municipal corporations — street opening, city of New York — award to unknown owners — when court will not vacate order confirming report of commissioners—nominal damages — consequential damages.
    The Appellate Division will not of its own motion vacate an order confirming the report of commissioners of estimate and assessment in a street opening proceeding in the city of New York making an award to unknown owners upon the ground that notice had not been given to parties who might be interested in the award, where then right thereto does not clearly appear and the attorney prosecuting the appeal is not authorized to appear for them.
    Evidence examined, and held, that a substantial award to unknown owners in a street opening proceeding should have been nominal in that their lands were burdened with easements in favor of the owners of other land and because the evidence might justify a finding of dedication and acceptance. •
    An owner entitled only to nominal damages for land taken in a street opening proceeding is not entitled to substantial and consequential damages as an owner of abutting lands, for the improvement is supposed to be in the nature óf a benefit.
    Appeal by The City of New York and by Frank Andre and others, the property owners, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 13th day of March, 1912. Also an appeal by Theodore W. Stemmier from so much of said order as overrules his preliminary objections.
    
      Joel J. Sqnier [Frederick W. Gahrmann, William B. R. Faber and Archibald R. Watson with him on the brief], for the city of New York.
    
      
      Philip B. La Roche, Jr., for Frank Andre and others.
    
      Merle I. St. John, for Theodore W. Stemmier.
    
      Benjamin Trapnell [Joseph A. Flannery with him on the brief], for the Cabinet Land Company.
   Burr, J.:

This is an appeal by the city of New York and by certain property owners liable for assessment in proceedings to open Titus street in that part of the city of New York formerly known as Long Island City, from an order denying a motion to vacate the order confirming the report of the commissioners of estimate and assessment appointed in such proceeding, and also an order appointing a referee to take proof of the facts and circumstances relating to the ownership of an award made in such proceeding to the unknown owner of a lot shown on the damage map, known as lot No. 4. Theodore W. Stemmier, one of the claimants to such award, also appeals from so much of said order as overrules a preliminary objection made by him to the hearing of the motion, upon the ground that notice had not been given to all of the parties who might be interested in the distribution of such award. ,

Although the appellant Stemmier opposed the granting of the motion and the motion was denied, he seems to have been dissatisfied because such denial was made upon the merits rather than upon a technical point raised by him. If the order was correctly made his appeal presents no real grievance. Inasmuch as we think that the order appealed from should be reversed we may say that the preliminary objection made by him was not well taken. The interest of the heirs of Babette Stemmier in said award is not so clearly made to appear that of its own motion the court feels called upon to require that they should be brought in. The attorney who prosecutes this appeal does not assume to appear for such parties, and is not authorized to assert any rights in their behalf. Upon the record here presented it seems clear that the land included within the boundaries of lot No. 4 on the damage map, for which an award was made to unknown owners aggregating App, Drv,—You. CLII. 48 for principal and interest about $10,000, was burdened with easements in favor of the owners of other lots on a map filed in the office of the clerk of Queens county entitled Map of 362 lots of ground belonging to the Trustees of the Long Island City Land Company.” (Taylor v. Hopper, 62 N. Y. 649; Lord v. Atkins, 138 id. 184; Matter of City of New York [Edgewater Road], 138 App. Div. 203; affd., 199 N. Y. 560.) It is not certain that the evidence would not justify a finding of dedication and acceptance. (Matter of Hunter, 163 N. Y. 542; Matter of Mayor, etc. [Walton Avenue], 131 App. Div. 696.)

Upon this record we conclude that the commissioners of estimate proceeded upon an erroneous theory in awarding the full value of the land when the same was incumbered by these easements; the award should have been nominal in amount. The respondent, the Cabinet Land Company, as the successor to the original owner of the parcel in question, contends that, even though it might be entitled to nominal damages only for the land taken, as owner of the abutting land it might be entitled to consequential damages, and that this very considerable award may be made up of both elements. The evidence taken before the commissioners and which is made a part of the motion papers [shows clearly that such was not the case. In addition, it is rather a novel proposition that the owner of distinct parcels of land abutting upon a projected street suffers consequential damages as a result of opening the same. It has always been supposed that such improvement was in the nature of a benefit for which an assessment might be legally imposed. There is authority for the granting of the application made by the city. (Matter of City of New York [Decatur Street], 196 N. Y. 286; Matter of Schneider, 199 id. 581; Matter of City of New York [Carroll Street], 137 App. Div. 39; Matter of Opening Hamilton Street, 144 id. 702.) It is true that the order confirming the report of the commissioners was made upon the application of the corporation counsel, but that also appeared in some of the cases above cited. It is. true that there has been great laches in this case; even greater laches appeared in some of the other cases. In Matter of City of New York [Decatur Street] (supra) the hearing before the referee to determine conflicting claims to the award had been completed and the referee had filed his report. Upon an appeal from the order directing the distribution of the award the Court of Appeals refused to “take part in the division of a fund to which none of the claimants are justly or equitably entitled,” and reversed the order and remitted the . proceedings to the Special Term of the Supreme Court, in order to afford the city of New York or any party interested an opportunity to move to set aside the award and the assessment. If this may be done after the closing of the reference and in a contest over the confirmation of the referee’s report, certainly it may be done while the reference is still pending.

The order should be reversed, with ten dollars costs and disbursements to each of the appellants, to be paid by the respondent, and the motion to vacate the order of reference and the order confirming the report of the commissioners should be granted, and a rehearing should be had before new commissioners to be appointed by the Special Term of this court.

• It may be also that some terms should be imposed upon the city as a condition of granting the motion which shall compensate the referee for his services and the parties for the additional labor involved by reason of the city’s neglect. For the purpose of fixing such terms, if any, and the appointment of new "commissioners, this proceeding is remitted to the Special Term of this court.

Thomas, Woodward and Rich, JJ., concurred; Jenks, P. J., not voting.

Order reversed, with ten dollars costs and disbursements to each of the appellants, and motion to vacate order of reference and order confirming report of commissioners granted, and rehearing ordered before new commissioners, to be appointed by the Special Term, in accordance with the opinion.  