In re Canal Place — 122 N.Y.S. 357

Majority

p. 357

(65 Misc. Rep. 634.)

In re CANAL PLACE IN CITY OF NEW YORK.

(Supreme Court, Special Term, New York County.

January, 1910.)

Headnote

Eminent Domain (§ 234^[1] )—Report of Commissioners—Amendment—Partnership_ Property.

Where commissioners of appraisement reported that a certain sum should be paid to persons for land taken for a street, the report should not be amended by striking out the name of one of such persons, on the ground that they were partners and the land partnership property, though after the death of one of the parties the surviving partner accounted to his administratrix on the ground that the lands were partnership property, where it does not appear that the heirs at law of the decedent were parties thereto.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 603; Dec. Dig-. § 234.^[1] ]

p. 358

In the matter of opening Canal Place, from East 138th Street to East 144th Street. On motion for order amending the report of the commissioners of estimate.

Motion denied.

See, also, 115 N. Y. Supp. 458 , 101 N. Y. Supp. 397 .

Michael J. Mulqueen, for petitioner.

Constantine T. Timonier, for Jennie Godde.

This is a motion for an order amending the report of the commissioners of estimate, filed and confirmed in this proceeding on or about December 1, 1908, by striking from said report the name of Richard W. Kane as one of the persons to whom an award for damage parcels Nos. 4PP1, 4QQ1, 4RR1, 4SS1, 4TTl, and 4UU1 was made, and directing the comptroller of the city of New York to pay said award, with the interest thereon, to Bernard Lenahan. The award was made by the commissioners of estimate to Richard W. Kane and Bernard Lenahan, as owners of record of the property acquired herein by the city of New York. Richard W. Kane and Bernard Lenahan, named in said report, and to whom the award was made, had been for a number of years copartners, and were copartners at the time of the death of Kane in January, 1895. Kane died intestate; leaving a widow, Jennie Kane, now Jennie Godde, and seven children, one of whom is yet an infant. After Kane’s death an action was brought in this court by his widow, as administratrix, against Lenahan, the surviving partner, for an accounting, etc., and in the settlement agreed to between them in that action the real estate in question was treated by both parties as partnership property, and was made the subject of an accounting. This motion was brought on by service upon Jennie Godde, the widow, of a petition duly verified by Bernard Lenahan, together with notice of motion asking for the relief hereinbefore stated, and the said Jennie Godde appears by attorney and opposes the application upon the contention that the real estate in question was not partnership property, but was real estate held as tenants in common by Kane and Lenahan, and that the interest of Kane therein descended, upon his death, to his heirs at law.

The moving party contends that the accounting made by him in the action referred to estops the heirs at law and the administratrix from making present claim to the award, or any part thereof. The heirs at law of Kane were not parties to the action for an accounting brought by his administratrix against the surviving partner. I am referred to the case of Darrow v. Calkins, 154 N. Y. 514 , 49 N. E. 61 , 48 L. R. A. 299 , 61 Am. St. Rep. 637 , which appears to support the contention that the heirs at law of a deceased partner are not necessary parties to an action for an accounting brought against the surviving partner by the administratrix, and that such heirs at law are estopped by the determination in such action, where no controversy existed as to the character of the property as partnership property. But, assuming that the doctrine laid down in the case cited is well founded, I have grave doubt that it warrants the granting of the order asked for herein. Upon the face of the commissioners’ report the award is made to Richard W; Kane and Bernard Lenahan. I have not before me the evidence upon which the award was so made, nor are the heirs at law of

p. 359

Kane, who have an undoubted right, in my mind, to an opportunity to uphold said award, now before the court. The motion is not to correct an error which might be apparent from an inspection of the papers, but is rather to determine the rights of parties not now before the court, and to alter the findings of the commissioners of estimate, which it must be presumed they reached upon sufficient evidence.

Motion denied.' Settle order on notice.