87 N.Y.S. 123 | N.Y. App. Div. | 1904
The final report of the commissioners of estimate and assessment, in the proceeding to acquire Church avenue, in the borough of Brooklyn, dated the 20th day of April, 1903, was confirmed April 28,1903, by an order of the Supreme Court, entered and filed in the office of the clerk of Kings county with the said report, on the following day; in and by said report awards were made to the Craigen Construction Company' in the sums of $2,711.59, $306.30 and $1,068.29 for damage to lots numbered 55, 57 and 58 respectively. In and by .said report benefit assessments were made upon the remainder of the Craigen Construction Company’s land as follows: Assessments for $725.53, $205.18, $8.98, $341.97 and $687.0.1 upon benefit maps numbered 86, 87, 93, 94 and 96 respectively. On the 29th day of August, 1903, a demand was made in writing upon the comptroller of the city of New York requiring him to make immediate payment of the awards set forth above with interest thereon
Section, 1001 of the revised charter of the city of New York (Laws of 1901, chap. 466) provides, as far as is material to this question, as follows: “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 of said report unless, within that time, demand therefor be made upon the comptroller.” ' It is clear, therefore, that unless a proper demand was made upon the comptroller of the city of New York, as required by the foregoing section, before the expiration of six months after the date after the confirmation of the
It is, perhaps, not clear whether the order appealed from intends to relieve the Craigen Construction Company from the payment of-all interest upon the benefit assessments against it or not; the language of the order is that the damages shall be paid, less the amount of the assessments, “ without any charge for penalty interest thereon.” If this language is meant to indicate that the construction company is to be relieved from the payment of any other than the lawful interest of six per "cent upon the benefits the order is correct, but if it means to relieve it from the payment of any interest it cannot be so characterized, for the city cannot Under principles of justice or under any provisions of the charter be compelled to pay interest upon moneys due the company for the damages and the prop
The order should be modified by directing that the damages awarded by the commissioners be paid with interest for six months after the date of the confirmation of the report, less the assessments with interest at the lawful rate of six per cent from the time interest accrued thereon until the expiration of six months after the confirmation of the report, or, which accomplishes the same, result, that the amount charged against the company for assessments be credited upon the award as damages, as of the time when it was due, and interest run on the balance of the award for damages in favor of the construction company until the expiration of six months after the confirmation of the report, and as thus modified the order should be affirmed, without costs.
All concurred.
Order modified as directed in the opinion of Hooker, J., and as modified affirmed, without costs.