
    In the Matter of the Application of Giovanni Cristiannia and Eleanora Cristiannia for Payment of Award in Matter of Acquiring Title to Rockaway Boulevard, etc., in the Borough of Queens, City of New York.
    Supreme Court, Queens County,
    May 2, 1928.
    Eminent domain — award — proceedings to compel comptroller of city of New York to pay award — comptroller has right to deduct value of use and occupation.
    The comptroller of the city of New York, in this proceeding to. compel him to pay the amount of an award for buildings taken by the city, has the right to deduct from the amount of the award the value of the use and occupation of the premises from the time the appropriation was made until the property was actually taken.
    Application to compel payment of award in condemnation proceeding.
    
      Clarence C. Ferris, for the petitioners.
    
      George P. Nicholson, Corporation Counsel [Joseph G. Mathews and Charles E. Clarke of counsel], for The City of New York, respondent.
   Humphrey, J.

Petitioners make this application to compel the comptroller of the city of New York to pay an award made to them in condemnation of petitioners’ property in a street widening proceeding. The facts are not in dispute. The title was vested in the city July 1, 1924, and the premises were occupied by the owners after the vesting of title for a period of sixteen months. The premises consisted of a store and an apartment. The city notified the owners upon the vesting of title that rental would be charged at the rate of eighty-five dollars per month. When the petitioners applied for their award in March of this year the comptroller insisted that the value of the use and occupation of the premises should be deducted from the award. This application seeks to compel the comptroller to deliver the award without such deduction. Under the provisions of the charter the comptroller is empowered to collect revenue for the temporary use and occupar tion of the premises under condemnation. To avoid litigation the comptroller has the right to make a deduction for the temporary use of the premises by applicants.. A dispute has arisen between the comptroller and the applicants as to the value of that use. If an agreement cannot be reached between the comptroller and the applicants as to the value of that use an order may be made directing that question to be tried by an official referee.  