100 N.Y.S. 140 | N.Y. App. Div. | 1906
Lead Opinion
The application to the court for the order requiring the comptroller to pay the award was made pursuant to the provisions of section 1001 of the Greater New York - charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), which, so far as material, provides as follows: “The person or persons to whom awards shall be. made in such proceedings, and the person or persons in whose favor costs and expenses may be taxed, shall not have an action at law against The City of New York for such awards, costs or expenses, but the court in which said proceedings have been had, upon the application of any such person or persons, in case of the failure of the comptroller of said city to pay the same within thirty days after .demand therefor, shall require and direct the comptroller to pay said awards, costs and expenses from the said fund, and enforce said order or mandate in the same manner as other orders and mandates of said court are enforced.”
This provision appears to be a re-enactment of section 992 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chap-" ter 660 of the Laws of 1893 and chapter 449 of the Laws of 1895. Prior to the amendment in 1893 an action might have been brought for the award, but since that time the person in whose favor the award is made appears to have been limited to this remedy.
The appellants show by their, moving papers that they were the owners of an undivided interest in the pier rights taken in this proceeding ; that they were duly awarded therefor the sum of $8,457.60 by the commissioners, whose report was duly confirmed; that demand was duly made upon the city for the payment of the award and that the city refused to pay the same in whole or in part, unless the appellants would consent that it deduct the sum of $335.76, the present amount of an assessment of $198.34, levied under the provisions of chapter 449 of the Laws of 1889 against the pier, which assessment was confirmed by the board of revision and correction of assessments on the 8th day of May, 1896, and entered upon the record as required by law; that the act only authorized the levying of assessments to pay the expense of paving, repaving and repairing certain streets in the city of New York described in city grants of land under water with covenants for paving and repairing, and “ as a substitute for covenants for paving, repaving and repairing said streets ; ” that the assessment levied against the pier property, designated as Parcel No, 451, was for paving South street from Whitehall street to Corlears street; that upon the same roll 488 parcels were assessed; that the undivided interest of the appellants in said property was not derived through nor was it held under any grant of land under water containing covenants requiring the grantee, his heirs or assigns, to pave, repave, keep in repair or maintain South street, or any part thereof; that South street is not a street or avenue described in any grant of land under water from the mayor, aldermen and commonalty of the city of New York, containing covenants requiring the grantee, his heirs or assigns, to pave, repave, keep in repair or maintain such streets; that neither the appellants nor their grantors, took any step or proceeding to release them from the obligations of any water grant covenants to pave, repair or maintain any street in front of or adjacent to their property, or elected or agreed that their property should thereafter be liable to be assessed as provided in section 2 of said chapter 449 of the Laws of 1889, and that South street, prior to the attempt to levy said assessment, had been paved and the expense thereof paid
The appellants also show that a similar assessment upon the same roll, in a proceeding in the Supreme Court brought by a landowner, to which the city was a party, was declared void and that no appeal was taken from the decision, and they rely upon the case of Chase v. Chase (95 N. Y. 373) as holding that in these circumstances, on a sale of the appellants’ rights, a purchaser would be required to take title without requiring the payment of the assessment, 'upon the ground that its invalidity clearly appears. This position would be tenable if the litigation had been taken to the Court of Appeals, for it would then be presumed that upon the principle of stare deeisis the court would follow its own decision upon the same facts whenever presented, but the Court of Appeals would not be bound to follow the Special Term decision. (Moore v. City of Albany, 98 N. Y. 396.)
The city does not controvert the facts set forth in the moving papers. The learned assistant corporation counsel neither denies nor concedes that the assessment is void ; but he contends that even though it be void, the court has no authority to require the city on that assumption to pay the appellants the entire amount of their award. He contends that the appellants are confined to such remedy as is given to them by the provisions of title 3 of chapter 17 of the Greater New York charter (as amd. by Laws of 1901, chap. 466, and subsequent amendments).
The learned assistant corporation counsel contends that it is of great importance to the city to have it established that it may deduct invalid assessments from awards made, even though the property owner may immediately recover back the amount paid. No facts or circumstances are pointed out showing, and it is not apparent that the city will thus obtain any advantage, unless it be the unconscionable advantage of being in a position to defend the action upon the ground
Under the former practice, when an action was brought to recover the amount of an award, it was held that the city was entitled to interpose as a defense pro tanto, the amount of any tax or assessment which was a valid lien upon the property. (Deering v. City of New York 51 App. Div. 402.) The court in that case, following Carpenter v. City of New York (44 App. Div. 230), which was based upon Matter of Opening Eleventh Avenue (81 N. Y. 436), announced the following doctrine: “ 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.”
The gross award stands as a substitute for the land which the
I see no injustice to the city likely to result if the court entertains jurisdiction to decide whether an assessment is void and to deny the right of the city to withhold any part of an award to pay a void assessment, and I see that injustice is almost certain to befall the claimants if this be not done.
Matter of Hagemeyer (113 App. Div. 472) is not in point. That was an attempt by a property owner to reduce the amount of an assessment by having interest alleged to have been erroneously added, canceled by writ of mandamus. The payment of an award was not involved. The court held that the petitioner was confined to the statutory remedies given him in the charter.
For these reasons, therefore, I think the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
O’Brien, P. J., Patterson and McLaughlin, JJ., concurred.
See Laws of 1798, chap. 80, § 5. See, also, Laws of 1801, chap. 129, § 7 et seq. —[Rep.
Concurrence Opinion
So long as the title to the property taken in the condemnation proceedings remained in private ownership the question of the
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.