Deering v. City of New York

| N.Y. App. Div. | May 15, 1900

Rumsey, J.:

The complaint alleges that the-plaintiff’s assignor was the owner of certain premises taken for a park in the twelfth ward of the city of New York, pursuant to chapter 56 of the Laws of 1894; that proceedings were had to condemn the land, and that on the 20th of May, 1899, the report of the commissioners was confirmed, by which there was awarded to the plaintiff’s assignor the sum of $24,123.93; and that this award was assigned to the plaintiff by the owner. It is further alleged that on the 27th of September 1899, the plaintiff demanded payment from the comptroller -of the full amount of the award ; and that on the twenty second of November following the plaintiff again demanded the “ settlement, adjustment and payment (of) a claim against the City of New York for the sum of $24,123.93, subject to and less the amount due and unpaid on account of all taxes and assessments lawfully confirmed prior to and a lien upon the premises for which the said award was made at the date of the report,” etc. The relief demanded is that the plaintiff may recover the sum of $24,123.93, with interest from the 27th of September, 1899.

The answer admits all the allegations of the complaint. For a further answer.it sets up that on the 27th of September, 1899, the date of the first demand, there were certain taxes and assessments which were valid and subsisting liens against the award, and the amounts of the Aarious taxes and assessments are set tip in full. It is further alleged that a part of these taxes and assessments were ■ paid, and that others of them remain due and unpaid and are still outstanding liens against the award. The answer then alleges that the: demand of the 27th of September, 1899, was not a valid demand, because it was for a sum in excess of the amount due. Then follows an allegation that the plaintiff is not entitled to any interest on the award, because of his failure to make a demand. It will be seen that the only question raised by the answer is as to the amount which the. plaintiff is entitled, to recover by virtue of the award, and whether he is entitled to any interest upon it. The demurrer interposed by the plaintiff to the answer upon the ground that- it was insufficient in law upon its face has been overruled, and from the judgment entered upon the dismissal of the demurrer this appeal is taken.

The right to interest upon awards of this nature is given by section 4 of chapter 56 of the Laws of 1894, by which the city is required within four months of the confirmation of the report of the commissioners to pay to the .parties entitled to the award the sums reported in their favor respectively, “ and in default thereof said * * * persons may sue for and recover the same with lawful interest from and after demand thereof, and the costs of suit.” It is quite clear that no interest can be recovered until a demand has been made, and so it has been determined, (Carpenter v. City of New York, 44 A.D. 230" court="N.Y. App. Div." date_filed="1899-11-15" href="https://app.midpage.ai/document/carpenter-v-city-of-new-york-5186540?utm_source=webapp" opinion_id="5186540">44 App. Div. 230.) All taxes and assessments which are liens on the premises at the time the award is made are. transferred to the award, and the city is entitled to deduct such as are valid liens. (Carpenters v. City of New York, supra.) The amount of these liens went directly to reduce the sum which the city was liable to p>ay upon the award, and, therefore, when the demand was made for the amount of the award on the 2'7th of September, 1899, the sum claimed was larger than the plaintiff was entitled to receive. For that reason the liability to pay interest did not then accrue, because, to set running a. claim for interest, the demand must be for the precise sum which the plaintiff is entitled to have. (Cutter v. Mayor, 92 N.Y. 166" court="NY" date_filed="1883-04-17" href="https://app.midpage.ai/document/cutter-v--the-mayor-etc-of-ny-3600740?utm_source=webapp" opinion_id="3600740">92 N. Y. 166, 169; Carpenter v. City of New York, supra.)

The answer, therefore, was sufficient to raise the question of the city’s liability to pay interest as it was. intended to do, if the allegations of the answer as to the existence of the liens were sufficient. The allegation in that regard is,. “ the following taxes and. assessments'were on the 27th day of.September, 1899, valid and subsist-, ■ing liens against the awards made, to plaintiff.” The plaintiff insists that this allegation is a mere conclusion of law, and, therefore, not admitted by the demurrer. His claim is that as certain proceedings are necessary to make an assessment a valid lien, such procedings must be set out in the answer in full with respect to each alleged lien, so that it can be seen from an inspection of the answer that the taxes and assessments do in fact constitute valid liens against the award. We do not agree with this contention. The defendant was not called upon to set up all the evidence necessary, to prove that these taxes and assessments were actually levied and had become liens. The material fact here was that they constituted a lien against the award, and the statement of that fact was, we think, a sufficient allegation to entitle the defendant to prove the lien in the manner required by law. The answer was, therefore, sufficient.

But it was not interposed as a counterclaim, but only as a defense to a portion of the claim of the plaintiff, and while it was sufficient for that purpose it was not such an answer as required a reply. The judgment, therefore, which required the' plaintiff to reply to the answer was erroneous and must be modified by striking out that portion of it, and as thus modified affirmed, with costs to the respondent, and with leave to the plaintiff to withdraw his demurrer within twenty days upon payment of the costs in this court and in the court below.

Van Brunt, P. J., Patterson,. Ingraham and Hatch, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to respondent, with leave to plaintiff to withdraw demurrer in twenty days on payi_.ent of costs in this court and in the court below.