In re St. Nicholas Terrace — 59 N.Y. St. Rep. 109

Majority

p. 109

In the Matter of St. Nicholas Terrace. Ira Shafer, App’lt.

(Supreme Court, General Term, First Department,

Filed February 16, 1894.)

Headnote

Condemnation proceedings—Apportionment.

Where the street and the easements are owned separately and both are condemned, the amount awarded must be apportioned between the abutting and fee owners.

Appeal from an order confirming the report of the referee in favor of the petitioners.

John- G. Shaw, for app’lts ; James A. Beering, for resp’ts.

We are satisfied that under the conveyances the naked fee of the strip of land called “ Pentz Street ” was retained in the Pentz estate, and under them abutting owners acquired simply the ordinary street easements over this strip; and, the city having condemned these easements and the fee, that the amount awarded must be apportioned between the six abutters and the owners of the fee, for the reasons and upon the principle stated in the opinion in Re Opening Eleventh Ave., 81 N. Y. 446 . The awards, therefore, should be equitably apportioned "between the owners of the fee and those persons to whose lands the easements were appurtenant. The orders should accordingly be re

p. 110

versed, and the case sent back- to the referee, in order that an apportionment may be made, with costs to appellants, to be paid out of the awards.