126 N.Y.S. 241 | N.Y. App. Div. | 1910
■ In the condemnation proceeding to which this application relates the commissionérs of- estimate made an award to the petitioner, the Bankers Investing Company, of $21,227.50 for damage parcel No. 2; and of $51,760 for damage parcel No. 8, and the commissioner of assessment made assessments for benefits on two parcels of-land in the name of the petitioner aggregating $24,128.10. .It is conceded that at the time the awards-and assessments were made the petitioner owned eight other parcels upon which assessments for benefits were made, but in such assessments the. ownership of said eight other .parcels was erroneously stated to be in others. The total amount of the assessments for benefits on the ten parcels owned by the petitioner was $76,591.18, which is less than the total amount of the awards.’ '
The appellants by this appeal present many questions which one would "suppose must have been frequently adjudicated by the courts, but no decisions are cited in which they are expressly considered, and, therefore, our views thereon should be formally stated.
' The appellants contend that since the aggregate of the assessments on lands of the petitioner is less than the aggregate of the awards made-to it, the petitioner is not entitled to the benefit of the provisions of .section 1007 of the Greater New York charter (Laws of
The theory of the appellants is that the phraseology of the section indicates that its provisions were intended to be limited to cases where there is an excess of the assessments over the awards. There could be no object in' thus limiting the scope of the statute. Although the statute does not in terms provide that awards shall be set off against assessments for benefits made against property owned by the same parties, it has been in effect so construed by the courts in order to give it practical effect without working an injustice to the city or to the property owner. (Matter of City of N. Y. [Church Avenue], 91 App. Div. 553.) In Matter of City of N. Y. (Church Avenue) (supra) it was held by the learned Appellate Division in the Second Department that an owner whose lands aré assessed for benefits is only entitled to payment of the excess of his award over the assessment, and if in his demand for payment of the award, made pursuant to the provisions of said section 1001 of the charter, in order to continue interest on it after the expiration of six months from the time of its confirmation, he fails to state that there has been an assessment against his lands for benefits, the demand being on that account for more than he is entitled to, is insufficient to continue interest on the award after the expiration of the six months. It is perfectly plain, I think, that the Legislature intended that the owner in such case is to be given the benefit of the application of the award in extinguishment of or reduction of the assessment for benefits.
Counsel for the appellants also contend that said. section 1007 of the Greater Hew York charter was enacted through inadvert
The only change material to the question now under consideration" that has been made in all that time is the omission of two commas and a change rendered necessary when the original law, which provided that awards for damages and assessments for benefits should be made by the same commissioners, was changed. (See Laws of 1906, chap. 658, § 30.) This last change was effected by substituting the words “ by the commissioners of estimate and by the commissioner of assessment ” in place of the words “ by the said commissioners.” When this provision was originally enacted in 1839 assessments for benefits drew no interest until thirty days after the confirmation of the commissioners’ report (B. L. of 1813, chap. 86, § 186), and awards did not draw interest for four months after the confirmation of the report; but after four months the person to whom an award was made was authorized to bring an action to recover the amount and interest after demanding payment. (R. L. 1813, chap. 86, § 183.) The theory of the learned counsel for the appellants is that the purpose of the statute originally was to protect the person in whose favor an award was made against having interest run on his assessment for benefits during the time the city was not required to pay interest on the award and that the present statute is to be construed in the light of the object of the original statute in question.
Awards are now payable with interest, not from a period after
Mo authority has been cited construing the statute in this regard, nor has the practical construction been shown or even stated, nor may we take, judicial notice thereof. The construction for which counsel for appellants contend requires that, the statute be construed as if the words “ period fixed for,” which now relate only to the period for the payment of the assessment, were repeated before the word “ payments,” relating to the payment of the awards. That would make it clearly appear that the Legislature intended to stop interest on such assessment's only until the owner would have a cause of action for Ins award. . In that event the city might have refrained from paying the award ; it would only have incurred the costs of litigation which it might have defended for years, and it would be only liable on the award for the legal rate of interest, while the assessment, if not paid by the owner by the use of other funds, could have been, at the expiration of the four months, forthwith enforced by distress and sale or action-with interest, costs and expenses. (R. L. 1813, chap. 86, § 186.) It was intended, I think, that the party in whose favor an award was made should have the benefit of the application of his award in extinguishment or redaction of the assessment as of the date the assessment was levied, or would otherwise have drawn interest, so that he would in the one case be liable only for interest on the surplus of the assessment, over the award, and would receive in the other case the surplus of the award over the assessment and interest from the time the award draws interest. The primary purpose of the statute was not, I think, to equalize the interest on assessments and on awards, but rather to relieve the party assessed to whom an award was made of the necessity of using other funds to pay the assessment to the extent that the award would pay the same. The city could always protect itself against having to pay interest on an award, and being deprived of the right to,collect interest on an assessment by paying the award or tendering payment thereof, which would stop the running of interest thereon. The learned Appellate Division in the Second
It is further contended in behalf of the appellants that the award of interest on the balance over and above the assessments from the daté when the appropriate entry required by law with respect to assessments was entered in the comptroller’s office to the date of payment is erroneous, in that interest should only have been awarded to May 5,1910, at which time the comptroller was ready to pay the awards. The report of the commissioners was filed on the 24th day of May, 1909, and it was confirmed on the seventeenth day of November thereafter. The "assessment was entered in the appropriate records in the comptroller’s office on the 10th day of December, 1909. It is stated in an affidavit made by a bookkeeper in the department of finance that the comptroller has been ready and willing to pay the awards with interest thereon since the 5th day of May, 1910, and that on the 2d day of May, 1910, a .notice “ that the comptroller was ready to pay was mailed to Mr. Flannery.”-' The consents of the notice are not set forth; nor does it appear who the per
This point is not very material, however, for we are of opinion that the petitioner did not make a sufficient demand to continue interest on the awards after the expiration of six months from the date of the confirmation thereof, which would be May 17, 1910. The question as to whether the notice by the comptroller was sufficient to stop the payment of interest would,, therefore, only affect interest for a period of twelve days, and the amount would be little more than nominal. It appears by the' affidavit read in opposition to the motion that the awards were made subject to the payment of certain mortgages ; that the amount due on the mortgages was not stated. There is proof that a demand was made upon the comp-trailer for the payment of the larger of the two awards within six months, but there is no evidence that any demand was made for the payment of the other award. The demand for the payment of the award was for the entire amount of the award, “ together with lawful interest thereon, less any and all taxes and assessments or other incumbrances now a legal lien on said award.” The comptroller could not be put in default so as to continue the petitioner’s right to interest after the expiration of six months by a demand so
We are of opinion, therefore, that- the order granting a peremptory -writ of mandamus should be modified with respect to the interest .on the excess of the awards over the- assessments by requiring payment of interest thereon from December 10, 1909, to the 17th day of May, 1910, only, and as so modified affirmed, without costs.
Ingraham, P. J., McLaughlin and Dowling, JJ., concurred; Scott, J., concurred in result.
Order modified as-directed in opinion, and as modified affirmed, without costs. Settle order, on notice..