In the Matter of the Application and Petition of John A. Bensel and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate for and on Behalf of the City of New York, etc. (Northern Aqueduct, Section 6, Parcels 309 and 310.) Sigmund Stern and Others, Appellants; The City of New York, Respondent

In the Matter of the Application and Petition of John A. Bensel and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate for and on Behalf of the City of New York, etc. (Northern Aqueduct, Section 6, Parcels 309 and 310.) Sigmund Stern and Others, Appellants; The City of New York, Respondent. Eminent domain — duties of commissioners — apportionment of award. Appeals by Sigmund Stern and others from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Putnam on the 8th day of May, 1913. [MAJORITY — Per Curiam:] Per Curiam: The order is right in purpose, but the commissioners rather than the court should correct then error. After the fourth separate report, awarding $8,500 for the fee damage for the taking of parcels 309 and 310 and the confirmation of the same, the proceeding was returned to the commissioners to apportion that award between the two parcels. But in disregard of their earlier report and the direction of the court they apportioned $6,140 to parcel -309 and $3,360 to parcel 310, but stated that each sum was “ the sum ascertained and determined by us as aforesaid as and for the value of the equity, interest, right or title of the ” company in the land, and the parcels were stated to be subject severally to mortgages, one for $15,000 and the other for $13,000. This departure from the order and attempt, to make a new award was without authority, and was in plain contradiction of the award confirmed, and in violation of the order returning the matter to them. But the court at Special Term has done what it is the commissioners’ province to do, viz., make the report for apportionment, and as it was not empowered to do this the order appealed from should be reversed, without costs, and the proceeding returned to the commissioners to apportion the award between parcels 309 and 310 according to the fee value of each parcel, and to state what mortgages severally cover the parcels and by whom they are held. Jenks, P. J., Burr, Thomas, Carr and Stapleton, JJ., concurred. Order reversed, without costs, and proceeding returned to the commissioners to apportion the award between parcels 309 and 310 according to the fee value of each parcel, and to state what mortgages severally cover the parcels and by whom they are held.