The facts in this matter are somewhat complicated, hut, as gathered from the briefs submitted, appear, so far as being material, to be substantially as follows:
The judgment of condemnation herein, entered on the 29 th day of February, 1908, adjudged the acquisition bv the plaintiff of certain named easements in various designated parcels of land, including the parcel known as “ Bronx Place ” and designated in said judgment as parcel No. 73a. It also named these claimants as having some property interest in said parcel, and directed the commissioners therein appointed to ascertain the compensation to be made to said claimants as defendants as having such interest. At one of the hearings held by the commissioners these claimant defendants appeared by counsel and asked to submit proof as to their damages from the taking of their respective interests in said parcel. The commissioners receiving or having already received in evidence on the part of the plaintiff a certain instrument purporting to be a deed by said defendants to the plaintiff of such easements in said parcel, executed on or prior to November 8, 1907, declined to receive any .evidence from such defendants and held, in effect, that by such deed the interests of those defendants in the easements condemned and taken had by such deed become the property of the plaintiff. In their report the commissioners stated that they had excluded from their consideration the said parcel 73a, .with certain other parcels, “ for the reason that the rights and easements, described in the judgment and petition herein have been acquired therein by the petitioner.”
Through some misunderstanding, these defendants did not receive actual notice of the motion or application made to the Special Term of this court for the confirmation of said report; and they now move that the order entered confirming said report be vacated as to said parcel, and these defendants, as claimants -therein, granted appropriate relief.
It appears to be conceded by the briefs submitted that, at the time when said judgment of condemnation was entered and title to the easements condemned vested in, the plaintiff, the parcel known as “ Bronx Place ” was not -a pub-*490lie highway, but was a private street, which bad been opened in the development of a villa tract and upon and by which many lots had been sold for several years, to such -an extent that it could properly he regarded as having been by the owners of the abutting lands dedicated as a public street; and that, shortly after such condemnation and vesting, such dedication was actually accepted by the city of Yonkers, so that at the present time the same is a public street.
It seems thoroughly well established that, under 'the circumstances .above named, viz., that the judgment of condemnation treated the easements condemned .as being, to some extent at least, the property of the defendants, it w,as incompetent for the commissioners to hear or consider any claim on the part of the plaintiff that, notwithstanding the terms of the judgment, the same were, when the judgment was entered, the property of the plaintiff, and the defendants had no interest therein to be condemned. City of Geneva v. Henson, 195 N. Y. 447, 455; Village of Olean v. Steyner, 135 id. 341; Matter of City of Yonkers, 117 id. 564.
The commissioners, therefore, should not have received in evidence the alleged deed, and should have given due hearing to these defendants 'as claimants interested in said parcel taken or the acquired’easements therein.
It would appear, however, from the facts above stated as to the condition of Bronx place as .a private street already dedicated to the. public, that these defendants were entitled to receive from the commissioners only a nominal award. Village of Olean v. Steyner, 135 N. Y. 341.
In the ease just cited, the village of Glean instituted proceedings under its charter to acquire, as and for a public street, such a private street as Bronx place, which had in like manner been practically dedicated as a public highway. The commissioners of condemnation practically decided that the street had already been dedicated and accepted, ¡and made merely a nominal ayrard to the adjoining property owners who owned the fee of the land taken. The Court of Appeals held that the ground of the decision by the commissioners was wrong because there had been no acceptance; but that, in view of the private easements established, the added bur*491den from the public use as a highway was merely technical and nominal and that it could not be said that more than nominal damages should have been awarded; and that, therefore, the report of the commissioners was rightly confirmed by the lower court.
Doubtless,the placing of the-Bronx Valley sewer in a public highway, anywhere within the district to be served by that sewer, cannot be regarded as an additional burden beyond the usual street uses to which the land included within such a highway is subject. It seem-s to me, therefore, that the reasoning of the Court of Appeals in the Clean case, supra, is equally applicable to the situation here as to “ Bronx Place,” namely, parcel 73a. At the most, the right to build and maintain the public sewer is only a part of the added burden, the whole of which in that ease the Court of Appeals held to be “but technical and nominal.”
These defendants, however, should be put in a position where they can have their day in court and can appeal from the order of confirmation, if they are so advised.
The motion, therefore, to vacate the order confirming the report as to parcel 73a is granted; and, upon and after argument heard of the motion to confirm said report as to said parcel, such' motion is granted upon the ground above stated that the defendants, upon the undisputed facts, would at the most be entitled only to nominal damages; and, therefore, that it: would be useless to refer the matter back to the commissioners for consideration and report.
The plaintiff has leave to file an affidavit setting forth the facts in regard to Bronx place as above stated, so that the record may contain them, as they do not seem to appear otherwise than by statements in the briefs.
Ordered accordingly.