86 N.Y.S. 1035 | N.Y. App. Div. | 1904
The petitioner claims certain awards made to unknown owners in proceedings by the city to acquire title to lands for street purposes. Pursuant to the procedure prescribed by section 1001 of the Greater New York charter,
Section 1001 of the charter in part provides: “ All damages awarded by the commissioners of estimate and assessment, with interest thereon from the date of said report, and all costs and expenses which may be taxed, shall be paid by The City of New York to the respective persons and bodies politic or corporate mentioned or referred to in said report, or in whose favor such costs or expenses shall be taxed. Interest shall cease to run on sums awarded as damages six months after the date of the confirmation
The general rule is that the city is vested with title to the land upon the confirmation of the report. (§ 990.), The damages are < payable upon the confirmation of the report. (§ 970.) But we' are to deal only with the interest that is to be paid- subsequent to the six months. The statute itself (ut 'S’wpra) limits the absolute right to interest to that period, and thereafter interest is conditional upon the demand prescribed by the statute. I regard such interest" in the nature of a penalty — as damages for the wrongful act of the city in withholding payment. (See Cutter v. Mayor, 92 N. Y. 166 ; Devlin v. Mayor, 131 id. 123.) In Donnelly v. City of Brooklyn (121 N. Y. 9) the court say: “ As stated by the learned counsel for the plaintiff, * * * the provisions of the statutes (2 R. S. 364, § 9; § 1211, Code Civ. Pro.) fixing the time for the running of interest upon judgments, are simply declarations of the rule at common law that damages are recoverable as an indemnity for á non-payment of liquidated pecuniary demands at maturity, when they should have been paid. It was held in Sanders v. L. S. & M. S. R. Co. (94 N. Y. 641) that interest was recoverable upon such judgments, ‘not by virtue of any contract to pay interest, but simply as damages because the defendant was in default in the dis■charge of its obligation to the plaintiff and wrongfully withheld money from him.’ The same rule in the same language was laid down in O'Brien v. Young (95 N. Y. 428).” And in United States v. Sherman (98 U. S. 565) the court say: “ It accrues only after the recovery has been had. Moreover, whenever interest is allowed either by statute on by common law, except in cases where there has. been a contract to pay interest, it is allowed for delay or default of the debtor.”
When the alleged demand, hereinafter noticed, was made, the confirmed report showed that these awards were, due, but only to certain persons who had not been ascertained in the proceedings and who were,, therefore, described as unknown. It is not alleged that at the time of the demand there was identification of the petitioner with the unknown owners. Common business prudence would warrant a refusal to pay such awards to the petitioner merely" upon his assertion that he was the unknown owner. In Cutter v.
I do not interpret the charter scheme to require action on the part of the city or of the comptroller towards the ascertainment of the identity of the unknown owner with the petitioner perforce of such demand, at the penalty of a continuance of the interest beyond the six months. This case is not within the purview of section 1002
Further, there was always open to the petitioner a proceeding
The practical result of the contention of the respondent in this case and in all other similar cases would be that one who could show that he was an unknown owner, need not, but might make his demand in mask and so require the city either to establish his identity at the peril of furnishing him with an investment during the life of the Statute of Limitations or take refuge under section 1002. The alternative alone removes this case from -the full force of the criticism made in O'Keeffe v. City of New York (supra). I do not believe that the law affords such possible reward to willful inertia. The petitioner should not be rewarded for standing still nor the city punished for not moving.
The order must be modified in accord with this opinion, with costs to the appellant.
i All concurred.
Order so far as appealed from-reversed, with ten dollars costs and disbursements.
Laws of 1901, chap. 466.— [Rep.