(dissenting):
This is an appeal from an order denying an application for a peremptory writ of mandamus to compel the comptroller of the city of New York to pay the relator a specific sum of money claimed to be due and payable as a balance of interest on an award for lands taken in eminent domain proceedings. In my opinion, the right of the relator to interest is governed by chapter 665 of the Laws of 1897, being a special act relating to River fide drive as distinguished from *527the general charter provisions. It is conceded that pursuant to the provisions of this special act the title to the land for which the award was made vested in the city on the 22d day of September, 1900. Section 6 of said chapter 665 of the Laws of 1897 provides, among other things, that the damages awarded by the commissioners of estimate and assessment when confirmed by the court, together with interest thereon from the date when the title to the lands vested in the city as therein provided shall become due and payable. In view of this provision the commissioners had no authority to award interest. They were merely authorized to determine the value of the land and other damages, if any, as of the date when title vested in the city and upon confirmation of their awards by the court interest upon the award from the time title vested follows as a matter of course. It appears that the commissioners acting according to the practice prescribed by the charter in other cases (See Laws of 1897, chap. 378, §§ 990,1001, as amd. by Laws of 1901, chap. 466) determined the awards as of the date when title vested in the city, but added thereto interest from such date to the time of filing their report. The comptroller in arriving at the amount payable to the relator accepted this computation of interest, but computed interest not upon the amount of the award, together with such interest added by the commissioners, but merely upon the award, exclusive of interest, from the date of the report of the commissioners to the time the order of confirmation was granted. . This, of course, produced the same results as if the computation of the commissioners had been disregarded and interest had been computed upon the award from the date when title vested in the city to the date of the confirmation of the report. The contention of the relator is that she should receive interest on the gross amount awarded, which included interest as stated, from the date of the report of the commissioners to the time the -award was paid. The views already expressed show that this claim is erroneous in so far as it would give the relator interest upon the interest' computed and awarded by the commissioners from the date of their report until it was confirmed. The interest thus erroneously claimed is included in the amount for which a peremptory writ of mandamus is demanded and, therefore, the writ was properly denied,- notwithstanding that the relator may have a valid * claim for some balance of interest, because in man-*528damns proceedings there must be a precise demand and for the relief to which the petitioner is entitled and the court is justified in denying the application if the petitioner has not a clear legal right to the precise relief for which he prays.
I am also of opinion that the relator’s right to interest after the confirmation of the report of the commissioners is not governed by the charter provisions and that under the well-settled rules applicable to municipal corporations interest would not run on the award until the making, of a demand therefor. The report of the commissioners was confirmed on the 17th day of April, 1903, and no demand was made until six days thereafter. I think that during this time interest did not run. The demand made on the 23d day of April, 1903, was erroneous in that it demanded the compound interest already stated and to which, I think,.the relator was not entitled Were it not for the decision of this court in Carpenter v. City of New York (44 App. Div. 230) I would be inclined to hold that interest should run from the date of this demand because the'prop^ erty owner then appeared and manifested a desire to receive- and a willingness to accept his award, and even though he computed and claimed interest on an erroneous basis I should think, the city, in-order to stop interest running upon the aw;ard was called upon to tender the amount to which he was legally entitled. However, in view of that decision, which I think is not distinguishable on principle from this and should, therefore, be followed, it would seem that, the demand was ineffectual to- set interest running and the relator, upon my view of the law, was not entitled .to any interest after the confirmation of the report. ■ ‘
On the 17th -day of July, 1903, the relator received from the comptroller the amount of the award, less the interest added by the commissioners, and interest thereon from thé time the title vested until the date of the confirmation of the report. This was the full amount to which he was entitled. The denial of the writ may also be sustained, therefore, upon the ground that no part of the claim is meritorious.
I, therefore, vote for affirmance.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.