15 N.Y.S. 865 | N.Y. Sup. Ct. | 1891
Section 990 of the New York city consolidation act,
A majority in amount of the awards and assessments would be represented by persons interested in the proceeding to the extent of $133,922.93. The learned counsel for the appellant asserts that the objectors were shown to represent $166,395.61 in the aggregate. In this view I think he is mistaken. Three deductions, at least, must be made from his total, and these reduce it to less than the statutory majority. One of the objectors is Mary A. Coleman, who claims to own property upon which the assessments are $4,753.26, and the awards are $18,892.23. This property is mortgaged for $24,000. The interest in the awards, therefore, belongs, not to her, but to the mortgagee, who in this class of cases is presumptively entitled to so much of the award as legally represents the amount of his mortgage. Astor v. Hoyt, 5 Wend. 603; In re John and Cherry Sts., 19 Wend 657; Barnes v. Mayor, etc., 27 Hun, 238. It follows that the appellant has overestimated Mrs. Coleman’s interest in this proceeding to the extent of $18,892.23.
There was also claimed for Stephen H. Thayer, another objector, an interest which is stated in the referee’s report at $13,018.68, and in Mr. Deering’s brief at $10,293.84. There is no competent evidence sufficient to establish the.fact that he is interested to the extent of either amount. The claim rests simply on Mr. Thayer’s oral statement that he owns certain property between 99th and 100th streets and Third and Fourth avenues. Ho deed to him is produced; the deed to which reference is made by the counsel for the appellant on the ninth page of his brief being a conveyance, not to Mr. Thayer, but from him. This is very far from being the “proper proof of ownership” which Judge Roosevelt must have had in mind in the case already cited, and which should certainly be exacted from claimants not named in the report of the commissioners.
A third objector whose interest is overstated is Eugene T. Lynch. The referee finds him to be the owner of property upon which the assessments amount to $13,512.56. But he had sold a part of this property before the referee took his testimony, and before the final hearing of the motion to confirm the commissioners’ report. This, I think, deprived him of any right to object to the continuance of the proceeding, so far as he based his objection upon any alleged interest in the portion thus sold. The statutory majority contemplated by section 990 of the consolidation act must be made up of persons in interest at the time of the coming in of the report of the commissioners and at the time of the hearing of the application for the confirmation thereof. Mr. Lynch does not come within the latter category, so far as a portion of his property is concerned, represented by $6,794.90 of assessments; for, as has already been stated, his interest therein had ceased by reason of the sale thereof before the application to confirm the report came on for a final hearing.
If I am correct in the foregoing views, and the appellant has exaggerated the interest of Mrs. Coleman by $18,892.23, the interest of Mr. Thayer by $10,293.84, (taking the lower estimate,) and the interest of Mr. Lynch by $6,794.90, we have an aggregate of $35,980.97, which, when deducted from $166,395.61, the amount which the objectors claim to represent, leaves only $130,414.64, which is less than the prescribed “majority in amount of the whole assessments and awards.” I think there are other objectors who are not proved to be persons interested, within the meaning of the law, to the extent of their claims; but there seems to be no occasion to go further to show that the application to discontinue the proceeding was properly denied on the facts. There is nothing in the point that, because no exceptions were filed to the referee’s report, it stands confirmed as a matter of course, and the facts found by him are therefore not open to question. The referee was ordered
Laws 1882, c. 410.
Not reported.