This appeal is from an order confirming the report of the commissioners of estimate and assessment appointed in this proceeding, which was instituted under condemnation proceedings begun by the city, of Yew York upon the. petition of the department of docks March 25, 1895. The proceeding was initiated upon notice to all parties interested, including the present appellants. Hearings were had before the commissioners on June 1, 1897, and were attended by all parties interested, including the appellants. The final report was made in Yovember, 1900. The Screw Dock Company, the owner of the property, was awarded the sum of $291,680, that being the full value of the fee. The Maine Steamship Company and the Bridgeport Steamboat Company claim to be entitled to an award, the former as lessee and the latter as sub-lessee of the Screw Dock Company of part of the premises in question. The two companies so claiming were awarded one dollar each. They appeal, contending that they should have been allowed in the aggregate $14,684 as the value of their unexpired terms,, as such value was fixed by the testimony of an expert witness. The city has no interest in the appeal other than confining the amount of an award to the fee value of the premises. It insists, and properly, that if the tenants are entitled to an award it must be out of the gross sum of $291,680 (Matter of Trustees, etc., 137 N. Y. 95 ; Matter of Daly, 29 App. Div. 286), it being conceded that that is the value of the fee. The tenant and sub-tenant or occupants of the pier, the present appellants, claim the right to a substantial award under these circumstances: On May 26,. 1894, the Maine Steamship Company leased from the Screw Dock Company this pier for a term of five years at a rental of $12,000 per annum,, with the privilege of renewal for an additional term of five years, *273provided written notice were given to the lessor on or before January 1, 1899: On May 28, 1894, the Maine Steamship Company sublet part of the pier to the Bridgeport Steamboat Company for four years from May 1, 1894, at an annual rental of $9,000, with provisions for renewal similar to those contained in the lease from the Screw Dock Company to the Maine Steamship Company. By the provisions of the lease and the sublease, therefore, the terms of those entitled to possession thereunder expired on the 1st of May, 1899. At that time this proceeding was pending and these appellants were parties to it. The final report was not made until November,. 1900, more than eighteen months after the expiration of the terms under the original lease and sublease. Meantime the appellants- were in possession- of the property. There is no evidence whatever to show that their leases were renewed or that they exercised their option to renew by giving notice as required by the terms of their leases to the Screw-Dock Company. It is, therefore, manifest that the commissioners of estimate and assessment could not have found that these appellants were entitled under leases to any substantial part of the gross award made for taking the fee of the premises. Indeed, the situation would indicate that any renewal that they might have demanded would have been subject to the city taking the property. But, at all events, the record is barren of any evidence upon which a substantial award could have been made for the dispossession of the appellants from the premises. Their terms having expired, no renewal of the leases having been shown and no exercise of the privilege to demand a renewal appearing, and the appellants remaining in possession with full notice of, and being parties to a proceeding on the part of the city to acquire the property, it is as reasonable a presumption as any' that they remained in possession at sufferance, and not under a term granted by the owner by way of renewal of the lease or of a new term for any fixed period. There were, therefore, no data before the commissioners upon which they could have made a substantial award to these appellants, and we are obliged to hear this appeal upon the evidence taken before the commissioners and to determine it upon the merits, both as te matters of-law and fact. (Greater New York Charter [Laws of 1897, chap. 378], § 988.)
*274Without, therefore, considering other questions that have been; discussed on the appeal,, we conclude that for the reasons above-assigned the. order of confirmation must be affirmed, with costs.
Van Brunt, P. J., - McLaughlin and Hatch, JJ., concurred ; Laughlin, J., dissented.