To compel the petitioner to try the issues respecting his title to the tax lien in the foreclosure action against that portion of the property not taken in condemnation would be tantamount to compelling him to resort to the unacquired portion before looking to the award in condemnation. This may not be done. (Matter of City of New York [Neptune Ave.], 271 N. Y. 331; Matter of City of New York [Houghton Ave.], 266 id. 26.)
The order appealed" from, therefore, should be reversed, without costs, and petitioner’s application granted to the extent of referring the issues raised by the petition and answer as to title, final decision on the motion meanwhile to be held in abeyance and to be decided upon the coming in of the referee’s report by the justice then and there presiding at Special Term, Part 1.
Present—'Martin, P. J., O’Malley, Untermyer, Dore and Cohn, JJ.
Order unanimously reversed, without costs, and petitioner’s application granted to the extent of referring the issues raised by the petition and answer as to title, final decision on the motion meanwhile to be held in abeyance and to be decided upon the coming in of the referee’s report by the justice then and there presiding at Special Term, Part 1. Settle order on notice.