127 N.Y.S. 445 | N.Y. App. Div. | 1911
This is an appeal by the comptroller of the city of New York, from an order for a peremptory writ of mandamus requiring him to pay the relator an award, with interest.- , .
The controversy is as" to the amount of interest to be’.paid. In the proceeding for opening Walton avenue, Henry Edelmuth obtained, an order on'July 17, 1903, pursuant to section 11 of' chapter 1006 of the Laws of 1895, directing the commissioners of estimate and assessment to take testimony and ascertain the compensation which should be made for the damages, if any, to the premises belonging to the petitioner caused by the closing and discontinuance of Seventh avenue. . Pursuant to this order and the direction of the statute above cited, the commissioners duly made and filed a report, dated December 5, 1905, awarding the sum of1 $9,010 as the damage suffered by petitioner’s land. ■ This report was confirmed at Special Term on June 'll, 1906. From the order of confirmation the city appealed successively to this court and to the Court of Appeals (Matter of Mayor, etc., Walton Avenue, 131 App. Div. 696 ; 197 N. Y. 518), with the result that the order of confirmation was finally affirmed by the latter court, on November 10,1909. On July
The question when and how the awards shall be paid has nothing to do with their ascertainment and determination. In my opinion,' therefore, the provisions of sections 1001 and 1002 of the charter as to the payment of awards for. street openings have not been imported into the Street Closing. Act and made applicable to the payment of awards for the closing of streets. Section 11 of the last named act (Laws of 1895, chap. 1006) provides for the payment of such awards by a provision which- certainly applies to independent proceedings to close a street, and I think equally applies in cases when a proceeding for closing a street is carried on in conjunction with one -for opening a street. ■ This section provides that such awards shall be paid to the person or persons entitled thereto within thirty days after demand therefor, in default of which application may be made to the court for an appropriate order to compel payment. This I think determines the period from which interest must be allowed. The Legislature clearly intended that the city, should pay with reasonable promptness, but devolved upon the claimant the duty of putting the city in default by making a proper demand., and, as I consider, the proper rule for the allowance of
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., Laughlin and Miller, JJ., concurred ; Clarke, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.