In re the City of New York

in the original tract proprietor, instead of being conveyed by his deed of conveyance of the abutting lot, as was the case with his other deeds of conveyance, arises only because the commissioners of awards and assessments made a substantial award when they should have made only a nominal one.. The said original proprietor owned nothing but a naked fee in this street strip which had become disconnected from the abutting lot. He had dedicated it to use as a street. It was of no remaining use to him, and was therefore of nominal value only (Matter of Adams, 141 N. Y. 297 ). But the commissioners seem to have been led into making a full award for it by the decision in City of Buffalo v. Pratt ( 131 N. Y. 293 ); not perceiving that that being a case where the abutting owner owned the strip in the street which the city was taking the fee of, had no application to the present case, where the strip never passed by the conveyance to the abutting owner, and thus remained a nominal'and a useless thing in the original tract proprietor. Moreover, it is an open question, if it be a question at all, whether by the taking, even where the abutting owner owns to the center of the street, of the fee by the city, but only “ in trust ” for street uses, by the present charter of the city (§ 990), anything more is taken than by a taking of an easement for all street uses. The difference in substance between the two takings seems to be imperceptible. The fee is not taken absolutely, but only in trust for and limited to such street uses (Matter of City of New York, 45 Misc. Rep. 162 ). The learned Judge at Special Term recognized that the award should not have been made, but, as the award existed, and the city let it go instead of appealing from it, as it might have been expected to do, he was obliged to give it to one or more of the claimants; and so he treated the award as a whole as being not only for the naked or nominal fee in the street strip, which still belonged to the original tract owner, but also for the street easements of light, air and access, which belonged to the owner of the abutting lot, and apportioned 12 per cent, thereof to the former and 88 per cent, to the latter The referee acted on the same theory, but gave the fee owner of the street strip only $1 and the balance to the lot owner.

The Court of Appeals found itself in the same awkward dilemma in Matter of Eleventh Avenue ( 81 N. Y. 436 ), and was driven to the same equitable theory. The award existed and had to be given

to one of the two claimants, or else divided between them. To help the abutting owner to get a part of the award, a presumption is indulged in that the street easements of light, air and access belonging to his lot, regardless of who owned the street fee, were also appraised by the commissioners as taken, and the damage therefor included in the award. In that way justice is done, because the award when given to the lot owner helps to pay or offset the assessment put on the abutting lot to pay the award and expenses, instead ' of going to the fee owner of the street strip. The resort to all this ingenuity for justice’s sake can be avoided by the commissioners making only a nominal award for the fee of the street strip. The street easements of the abutting lot remain after the street is officially opened, instead of being taken away, and there is therefore no reason to make an; award for such easements, as if they were being taken, and cast the same on the abutting lot for the owners to pay.

The apportionment of the award made by the referee was the more just and equitable, for the reason that the owner of the nominal fee in the street was in all justice entitled to a nominal award only, and the abutting owner should not be saddled with assessments to pay him more ; • and as between him and the owner of the abutting lot, against which an assessment had been made to pay the award, equity dictated that the award should be given to the abutting' owner.

The remaining question is whether by reason of the deed of conveyance of the abutting lot after the confirmation of the award, and the vesting of title in the city, the award does'not belong, equitably at least, to the grantee. Title to all that the city took, land or easements, real or imaginary, having vested in the city, the subsequent conveyance of the lot and its appurtenant street easements by .the abutting owner (for such easements go as appurtenant) only conveyed what she had left. She did not convey, nor can it be said she intended to convey, the easements, real or imaginary, for the taking of which, in whole or in part, the award was in part made, as the theory is, as we have seen; and hence it cannot be 'said that the award was conveyed, because the thing which it represented was conveyed, and therefore passed to the grantee, as the case would be (Magee v. City of Brooklyn, 144 N. Y. 265 ). The equitable theory

on which the award, in whole or in part, is given to the abutting owner, viz., so that it may be applied or offset against the assessment on the abutting lot, does not require that it be held that the award passed to the grantee, in order to prevent the defeat of the object of such theory. Although the abutting owner conveyed the lot, there is no reason why she should not collect the award, for she is liable to the grantee for the payment of the assessment on her covenant against encumbrances; and if she conveyed subject to the assessment (which does not appear), the sale price was fixed that much less, and there would be no reason why she should in addition lose the award so that it could go against the assessment.

The order should be reversed, and the report of the referee confirmed.

Jenks and Rich, JJ, concurred; Hirschberg, P. J., and Miller, J., dissented, but not from the conclusion that the award should have been nominal only.

Order reversed, with ten dollars costs and disbursements, and report of referee confirmed.