241 A.D. 614 | N.Y. App. Div. | 1934
Order in so far as it denies petitioners’ motion to direct payment of award as to damage parcel No. 23 affirmed, without costs. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur. In so far as it denies the motion to direct payment of award as to damage parcel No. 24, the order is reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, without costs. Lazansky, P. J., Young, Hagarty and Tompkins, JJ., concur; Carswell, J., dissents and votes to affirm the order as to that parcel. In our opinion, the city was required by section 1002 of its ‘charter to pay into the Supreme Court these awards to unknown owners. This was not done. If the law had been complied with, the moneys would then become trust funds, and the presumption of payment under section 44 of the Civil Practice Act would not arise. As to damage parcel No. 23, appellants have not proven ownership of the award — there was no assignment of the award to them. Though the quitclaim deed given them purported to convey not only the portion of the premises owned by the grantors, but also the portion previously acquired by the city, and although the deed contained the usual appurtenance clause, this is not sufficient to indicate an intention on the part of the grantors to assign the award for that part of the premises taken.