In re Reubel
103 N.Y.S. 804
N.Y. Sup. Ct.
1907
Check Treatment
Blanchard, J.

This is a motion to confirm the report of the referee appointed to report, with his opinion, testi*605mony taken regarding the ownership of a certain award herein. A part of the premises to which the city acquired title in laying out Tremont avenue was at the time the title was acquired owned by one Reubel. Thereafter Reubel died, and the parcel from which the city acquired certain premises was subsequently Sold by a referee in a partition action in pursuance of a decree therein. The purchaser at the referee’s sale was one Grossman, from whom the claimant, Thorne, derives title. According to the terms of sale and the conveyance this parcel was conveyed “ as the same may exist with reference to said opening of Tremont avenue,” and no express disposition was made of the award. The award is now claimed by the administrator of Reubel and also by Thorne. The right to the damages resulting from the acquisition of the premises by the city accrued when title vested in the city, and although these damages were not fixed until the confirmation of the commissioners’ report, which determined the award, that fact does not alter the character of the award as a personal right vesting in the owner when the property was acquired by the city and remaining in his estate unless conveyed away by him or by his successors. Matter of Trinity Ave., 101 N. Y. Supp. 613, 615; King v. Mayor, 102 N. Y. 171, 175; Matter of Seventh Ave., 59 App. Div. 175, 177; Van Loan v. City of New York, 105 id. 572, 576. A sale of real property does not carry with it an award for a portion taken by eminent domain unless express mention is made thereof in the conveyance. Matter of Seventh Ave., supra; Matter of City of Rochester, 136 N. Y. 83, 90; Patterson v. City of Binghamton, 154 id. 391, 404. According to the two cases last cited the referee not only did not but, in fact, could not sell anything more than the balance of the land without the award. The judgment and interlocutory decree in the partition action, which the claimant Thorne was not permitted to introduce in evidence, do not alter this conclusion. It follows, therefore, that the award is the property of the administrator of Reubel, and accordingly the report of the referee is confirmed.

Referee’s report confirmed.