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App. Div.)

Second Department, March, 1910.

In the Matter of the Application of The City oF NEW YORK, Rela

tive to Acquiring Title, etc., for the Purpose of Opening Carroll Street, from Albany Avenue to East New York Avenue, in the Twenty-fourth and Twenty-ninth Wards of the Borough of

Brooklyn, the City of New York. MELANIE PFIZENMAYER, Appellant; The City of New York and

REMSEN REALTY COMPANY, Respondents.

Second Department, March 4, 1910. Municipal corporations - eminent domain - street opening, city of New

York – court cannot alter report – awards - condemnation of street already open to public — rights of abutting owners. On reviewing the report of commissioners of estimate and assessment in a street

opening in the city of New York the court has no power to change an award made to a certain person so as to make it payable to unknown owners, but must follow the procedure prescribed by section 986 of the charter and return the report to the commissioners, or to new commissioners, for revision and

correction. It seems, that one owning merely a naked fee in a street already thrown open to public use and not subject to assessment for benefits received when the street is acquired by the city of New York, is not entitled to substantial damages, for her fee is already subject to a right of way, and additional burdens would

be put upon abutting owners assessed for benefits received. It seems, that upon awarding damages on taking the fee of a street already sub

ject to a public use, the commissioners should consider the claims of abutting owners who are assessed for benefits received.

APPEAL by Melanie Pfizenmayer from an order of the Supreme Court, inade at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of March, 1909, directing the clerk of the court to change an award to the appellant, made by commissioners of estimate and assessment of the city of New York, so that the same should be payable to an unknown owner.

The property taken was embraced within a street which had been thrown open and used under the name of Carroll street, but which had not become a public street by dedication, or the acquisition of title by condemnation proceedings. Lots had been sold abutting upon this street, which gave to the owners, as against their grantors and predecessors in title, an easement for ingress and

Second Department, March, 1910.

[Vol. 137. egress upon and over the land forming the street. In 1901 the appellant took title to lands on both sides of this street and abutting thereon. The description in such deed of the two parcels, title to which was later acquired by the Remsen Realty Company, commences in the south line of Carroll street and runs thence easterly “along the southerly side of Carroll street," thus excluding the street. The description of the first parcel was followed by the words: “Also all the right, title and interest of the party of the first part of, in and to Carroll Street and Utica Avenue, lying in front of and adjoining said premises, to the centre lines thereof respectively,” and immediately after the description of the second parcel the following: “Also all the right, title and interest of the party of the first part of, in and to Carroll Street, lying in front of and adjoining said premises to the centre line thereof.” She subsequently conveyed these lots to one Breivogel, who conveyed them to the Remsen Realty Company, who claims to share in the award. In these last conveyances the land is limited by the street line as in the conveyance to the appellant, and the grantors did not assume to convey any title to or interest in the street.

George A. Voss, for the appellant.

James F. Quigley [Archibald R. Watson with him on the brief], for the respondent The City of New York.

Robert II. Haskell, for the respondent Remsen Realty Company. Rich, J.:

The city does not appeal, and the only question presented is whether the court at Special Term had authority to alter and change the report of the commissioners. The charter of Greater New York (Laws of 1901, chap. 466, § 986), provides as follows: “The said court shall by rule or order, after hearing any matter which may be alleged against the same, either confirm the said report in whole, or in part, or refer the same, or a part thereof, to the said commissioners for revisal and correction, or to new commissioners, to be appointed by the said court to reconsider the subject-matter thereof, and the said commissioners to whom the said report or part thereof shall be so referred shall return the same report or such part thereof, corrected and revised, or a new report to be made by them in the premises to the said court without unnecessary delay; and the same on being so

App. Div.]

Second Department, March, 1910. returned shall be confirmed or again referred by the said court in manner aforesaid, as right and justice shall require, and so from time to time until a report shall be made or returned in the premnises, which the said court shall wholly confirm.” Said section has been amended by chapter 658 of the Laws of 1906, but, so far as it is applicable to this case, no substantial change has been made. (See Matter of City of New York [West 162d Street], 125 App. Div. 485, 490 ; affd., 192 N. Y. 570.) The language of this charter section is clear, and it will be seen that no authority is given the court to change the decision and report of the commissioners. The power is limited by the procedure created by the Legislature to returning the report and award to the commissioners, or to new commissioners for revision and correction. I think it was error, therefore, to direct the clerk to change the report in so material a matter, and as so changed to confirm it. It may be that, because the award is not challenged as to amonnt by either party, and no appeal is taken by the city, it is not a proper subject for our consideration and that we cannot upon this appeal determine whether a case is presented in which substantial damages should have been awarded, but in view of the conclusion I have reached, it is proper that I should state the conclusions of this court upon that subject. Assuming that the appellant acquired title to the street by her deed, she was, after she conveyed to Breivogel, the owner of the naked fee only. She owns no property abutting on that portion of the street and for that reason is not subject to assessments for benefits. Her fee was subject to the right of ingress and egress over the land in the street, and in view of these facts a case is not presented in which substantial damages should have been awarded her. The city took from her a naked, unproductive fee, incapable of pecuniary advantage, useless, bereft of enjoyment and incapable of earning, and in the absence of reliable evidence establishing the contrary, the land must as to her be held to have possessed nominal value only. The Remsen company, because of its ownership of the abutting land, was assessed in a substantial sun for the improvement, although it really obtained no greater benefits after the street was made a public street than it possessed in the same land when it was a private street. We are unable to see how she was substantially damaged in taking the burdened fee, or Second Department, March, 1910.

(Vol. 137. why the Remsen company should be inflicted with substantial dainages for the transfer of its easement rights in the private street to the same rights in a public street. (See Matter of City of New

York, 196 N. Y. 286.) It appears that the claim of the Remsen Realty Company to share in the award to be made for the damages was presented to the commissioners together with the title on which such claim was based, and should have been considered by them in determining who was entitled to the award. As was said by Judge Rapallo in Matter of Eleventh Avenue (81 N. Y. 436, 449), quoted approvingly by Judge Vann in Matter of City of New York (supra): “There would be manifest injustice in awarding the whole compensation to the owner of the fee, in view of the fact that such compensation is ultimately payable by the owners of the adjacent lots in the form of assessments, while no part of these assessments is chargeable to the owners of the fee of the land taken. The adjacent owners would thus be compelled to pay full value for a right of way which they already possessed. * * * If the compensation paid to the owners of the fee had been merely nominal it would have been equitable to adopt the same rule in respect to the owners of the easernent.”

The order must be reversed, without costs to either party in this court, and the proceeding is remitted to the Special Term, with leave to the city of New York or any party to move to set aside the award and assessinent, if any, and for a rehearing before the commissioners, or others to be appointed in their stead. If such motion is not made, or if made and denied, application may be made by any party for a rehearing before the same or other commissioners to be appointed, to the end that further evidence may be presented of the title of the appellant to the land lying in Carroll street, and as to any easement of the Reisen Realty Company therein ; the proportionate value of the respective interests, and as to the amount to be assessed upon the abutting owners to pay for the improvement.

JENES, BURR, THomas and Carr, JJ., concurred.

Order reversed, without costs to either party in this court, and proceeding remitted to the Special Term for disposition in accordance with opinion.

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HENRY WALDER, Respondent, v. BridgET ENGLISH, Appellant.

Second Department, March 31, 1910. Evidence – landlord and tenant - when lease executed by agent without

authority admissible — money had and received.

In an action to recover rents paid in advance under a lease which the defendant

claimed had been executed by her husband as her agent without authority, the lease and receipts for the money paid are admissible in evidence although the plaintiff proved no written authority in the husband, for they are competent

to show the foundation for the payment of rent by the plaintiff. Where in such action it appears that the husband had authority to lease part of

the building and that he received the advance rent in the defendant's presence and with lier approval, and she subsequently refused to give the plaintiff pos. session, the jury may find that there was an implied promise by her to return the money unless she complied with the conditions of the lease under which she received it. Burr, J., dissented.

APPEAL by the defendant, Bridget English, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said comty on the 28th day of May, 1909, upon the verdict of a jury, and also froin an order entered in said clerk's office on the 11th day of June, 1909, denying the defendant's motion for a new trial made upon the minutes.

Joseph W. Middlebrook [Ellery E. Albee with him on the brief], for the appellant.

Michael J. Tierney and Walter G. C. Otto, for the respondent. WOODWARD, J.:

The plaintiff brings this action to recover damages alleged to have been sustained by reason of a breach of contract on the part of the defendant for the lease of certain premises in Dobbs Ferry. The complaint alleges in substance that the defendant, acting through her husband, James English, as agent, entered into a contract with the plaintiff for the leasing of certain hotel premises in Dobbs Ferry at an annual rental of $900, to be paid monthly in advance, the terin being five years; that the plaintiff, at the demand of the defendant, paid $300 npon such rental, and in July, 1907, at the beginning of the terın, demanded possession of the premises, which

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