It cannot be necessary for the decis- ■ ion of this case, to inquire whether the defendants .might not have been authorized to take possession of and sell any buildings standing on the portion of the street which is opened, if the commissioners award the value of such building to the owner. If it were necessary, I should have no hesitation in holding that such an award would vest the title to the property in the defendants.
In the present case, the averment is that the commissioners only awarded damages for injury to the building, and for removing it, and that the materials were awarded to the plaintiff as part compensation for the damages sustained by her. The act of 1813, (2 R. L. 413,) provides that the *307report, when confirmed, by the court, shall be final and conclusive as well upon the mayor, aldermen and commonalty of the city of New York, as upon the owners, lessees and persons interested in the lands &c. and upon all other persons whatsoever.
[First Department, General Term, at New York, April 3, 1871.The report is confirmed on the application of the defendants, and its confirmation is made conclusive upon them. I am at a loss to see upon what ground they can now say that the report is not binding as to the materials, as much as it is as to the other portions. If the awarding of the materials was objectionable to the defendants, they should have made such objections before the confirmation of the report. They cannot do so after the report has been confirmed.
It seems to me that the complaint does state a sufficient cause of action, and that the demurrer is not well taken. The judgment should be reversed, and judgment ordered for the plaintiff, on the demurrer, with leave to the defendants to answer on payment of costs.
Geo. G. Barnard, J., dissented.
The judges before whom this case was heard having disagreed, the same was sent to the second department for hearing. (See act of April 27, 1870, relating to the Supreme Court, § 6.)
Ingraham, P. J., and Geo. G. Barnard, Justice.]