178 A.D. 654 | N.Y. App. Div. | 1917
Mabel Jones applies for an award .for part of her land taken by the city of New York in street opening proceedings. The proceedings resulted in an award for the part taken and in an assessment for benefit to the part left.
Prior to the proceedings, Jones had mortgaged her land. Subsequent to the vesting of the part of the land taken by the city, the mortgage was foreclosed and a third party became the purchaser at the foreclosure sale. It is not clear whether, incidental to the said sale, the assessment was paid. (See Code Civ. Proc. § 1676.) It seems improbable, if it was paid, that the city would seek now to exercise the right of set off of the assessment against the award. The fact can be ascertained in this proceeding (Matter of Mayor [Morris Avenue], 118 App. Div. 122), and it should be.
If the city has the right to set off the assessment against the award, I fail to perceive how the foreclosure suit could affect that right. The city was not a party to the foreclosure, and its rights were unaffected thereby. (Morgan v. Fullerton, 9 App. Div. 233. See Delcambre v. Delcambre, 210 N. Y. 465.) The award for the land is, in the eye of the law, the land. (Gates v. De La Mare, 142 N. Y. 312.) “ The paramount right of the city withdrew from the lien of the mortgages ” the land condemned, and such land was transferred to the city free and discharged from such lien, and
I am of opinion that the city has the right to set off an assessment for benefit against an award. In Matter of Steinway Co. v. Prendergast (142 App. Div. 905) we affirmed the order upon the authority of Matter of Bankers Investing Co. (141 id. 591) and said: “ We intend hereby to decide that the amount of the assessments without interest, should be offset against the amount which was due for award on the date when the assessments became payable.” (See, too, Matter of Fischer, 149 App. Div. 618; Matter of Schoonmaker v. Prendergast, 171 id. 312.) In Livingston v. Mayor, etc. (8 Wend. 102), the chancellor, after discussion of the question of benefits and awards, closes with the proposition with reference to the owner: “ It therefore makes no difference whether he is allowed the whole value of the property taken in the first instance, and is assessed for his portion of the damage, or whether the one sum is offset against the other in the first place, and the balance only is allowed.” Livingston v. Mayor of New York (supra) is cited and quoted from as a precedent in this State in Bauman v. Ross (167 U. S. 577-588). In Eldridge v. City of Binghamton (120 N. Y. 313) the court, per Vann, J., say: “ The weight of authority seems to be in
I advise that the order be reversed, but without costs, and the matter be remitted to the official referee to determine whether or not the assessment has been paid, and for such other determination as may be proper.
Thomas, Stapleton and Putnam, JJ., concurred.
Order reversed, without costs, and matter remitted to the official referee to determine whether or not the assessment has been paid, and for such other determination as may be proper.