In re Daly , 48 N.Y.S. 731 ( 1897 )

Cullen, J.:

We shall not discuss the question whether the commissioners have made-an inadequate award for the land taken, as we are of opinion that the report is not in such- form as to enable us properly to pass on that point. The appellants are the purchasers of lots, being part of a farm recently subdivided into building plots. It appears that, at the time the title to the' lands condemned vested in the city, the appellants had not taken deeds for their lots, though they had made partial payments of the piirchase moneys. The commissioners have not appraised the specific lots, but have made an award substantially for the -whole farm, subject to what they term the equitable interests of the appellants. On what principle the value of such interests was determined does not appear. Plainly the appellants were not awarded the value of the lands which they had contracted to purchase, for the award is less than the lowest valuation given by any of the witnesses for the city. The appellants’ counsel asserts in his brief that the award was arrived at by .giving each purchaser the same proportion of the appraised .value of a lot as his payments on account of the purchase bore to the whole purchase price. Whether this was the rule adopted or not we do not know, but if it were the rule then we think it was erroneous. I have been unable to find in the evidence a clear statement whether the appellants were in possession of their lots or not. It is unnecessary for us to say in advance what is the true status of the purchaser of land which, before the contract of sale is carried out, is appropriated for ■a public use. It may be that such a purchaser is to be considered as the real owner, and the Vendor as merely holding a hen for the amount of the unpaid purchase price. Or it may be that the contract of purchase falls by the destruction (if we. may so term it) of the subject-matter of the contract, and that the purchaser is entitled to a return of his payments. -These questions can be determined when we have a report that properly presents the facts. Where different parties are interested in different pieces of land, specific awards should be made for each separate piece, and not a single award made.for a large tract comprising the separate plots of. the different parties.

The order of confirmation should be reversed, the report of the commissioners so far as it relates to the lots of the appellants set aside, and the matter remitted to the commissioners for a new hearing and further report, with ten dollars costs and disbursements to the appellants. . ■

All concurred.

Order reversed and report and award of commissioners, so far as they relate to the lots of the appellants, set aside, and the matter remitted to commissioners for further proceeding, with ten dollars costs and disbursements to the appellants1.