#### In the Matter of the Application of the City of New York, Relative to Acquiring Title, etc., to Certain Lands, etc., as a Site for a New Court House, etc.

First Department,

January 15, 1915.

Municipal corporation — city of Mew York — eminent domain — acceptance of award —waiver of right of appeal.

Where a claimant in condemnation proceedings, after filing a notice of appeal from an order confirming a report of commissioners of estimate ■ and appraisal of the city of New York, serves a notice upon the comptroller, demanding immediate payment of an award which had been made to him, and states therein that he does not thereby waive or abandon the appeal, and the city pays the amount of the award, the receipt stating that the sum is in full payment, and that the payee will lose his right of appeal, the acceptance waives the right of appeal, notwithstanding the claimant’s attempt to reserve it.

Motion to dismiss an appeal by a property owner from an order confirming the report of commissioners of estimate and appraisal herein.

*Charles J. Nehrbas,*for the motion.

*Alexander Rosenthal,*opposed.

Per Curiam:

This was a proceeding to acquire title to real property. By the report of the commissioners, the appellant was awarded *59$135,000 for damage parcel No. 33. On August 5, 1913, an order of the Special Term was entered confirming the report of the commissioners of estimate and appraisal. On August 13, 1913, the owner filed a notice of appeal from the order of the court confirming the report. On September 25, 1913, the appellant delivered a letter to the comptroller demanding payment of this award, as follows: “Please take notice that I, the undersigned, hereby demand the immediate payment of the award made to me for damage parcel No. 33 in the New Court House Proceeding. Furthermore, take notice that by demanding or taking the amount so awarded; I do not waive or abandon the appeal which I have taken in the said proceeding or my right to prosecute the same or any further appeal.” On September 28, 1913, this demand was acceded to by the city, and appellant paid the amount of said award, giving at the same time a receipt which stated: “The city claiming that such sum is in full payment of above account and that by the acceptance thereof the payee loses all right to appeal in the matter, but the payee claiming his right to appeal and all rights incident thereto are reserved as per notice under date of September 25, 1913 * * The appellant also executed a release to the city, which stated in substance the same claim of the city and the claim of the appellant as was stated in his receipt. Based upon this payment of the award to the appellant, the city now moves to dismiss the appeal, relying on *Alexander*v. *Alexander*(104 N. Y. 643); *Matter of City of New York [Tunnel Street]*(212 id. 547) and *People ex rel. Long*v. *Board of Supervisors*(120 App. Div. 553), where Miller, J., delivering the opinion of the court, says: “It matters not that a protest was made; he was not obliged to receive the money. Whether he took it as a payment in full or as a part payment does not matter; by taking it he accepted the benefit of the decision from which he was appealing.” We think that by accepting this award from the city, the city expressly claiming that the acceptance of the award would waive the appellant’s right to appeal, such right was waived and the appeal must be dismissed. It was the claim of the city upon which the payment was made that controls. The mere fact that the appellant claimed *60that such payment would not waive his right to appeal is not material if in fact the receipt of the award was such waiver. The appellant was not bound to accept the award. He accepted that award as the amount to be paid to him as the value of the property, the title to which had been acquired by the city. He cannot afterwards be heard to complain that the order confirming the report was erroneous and the property should be reappraised. He demanded the award and received it, and the acceptance was a waiver of the right to review the order of the Special Term.

It follows, therefore, that the motion must be granted and the appeal dismissed, with ten dollars costs.

Present—Ingraham, P. J., McLaughlin, Laughlin, Scott and Dowling, JJ.

Motion granted, with ten dollars costs. *61Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1915, as amended by an order entered in said clerk’s office on the 16th day of March, 1915, denying a motion to vacate and set aside a warrant of attachment herein, upon the ground that the moving papers are insufficient, and also to vacate and set aside the levy made thereunder.