134 N.Y.S. 844 | N.Y. App. Div. | 1912
This proceeding for the opening of Grote' streej from East One Hundred and Eighty-second street to the Southern boulevard, in the borough of the Bronx, - city of New York, was instituted by the adoption of an appropriate resolution by the board of street opening and improvement on June 18, 1897, the original map having been filed November 2, 1895, ratified and approved by chapter 712 of the Laws of 1896. Commissioners of estimate and assessment were duly appointed herein December 29, 1897. Title to the property embraced in the proceeding vested in the city on November 27, 1901. Pursuant to the provisions of section 14 of chapter 1006 of the Laws of 1895 the petitioners, Franz Guth, Franz Yungling, Benjamin F. Gerding, as executor, Fred Flaccus and Charles Flaccus, made their respective petitions on March 15, 1904, praying that an order be made directing the commissioners theretofore appointed herein to ascertain and determine the compensation which should justly be made to them by reason of the discontinuance and closing of Grote street, and for the inclusion in their report
The learned court at Special Term in denying a reargument of the motion to confirm the commissioners’ report based on the claim that the awards were insufficient, as not including interest, said: “ The Commissioners thus gave these claimants
He also said: “ It is quite probable that they [claimants] had the use and occupation of the property, and that the use was beneficial.” The fact was not referred to that the owners had continually insisted on their right to interest. Nor were they in any way responsible for the long delay in the proceeding. There was no proof whatever that they used the property, which was unimproved, or that any use thereof had been beneficial to them. The city contends that the commissioners may have offset the valúe of the use and occupation of the vacant land against the interest; but it is sufficient answer to this to say that not only is it fairly deducible from the reports that no interest was allowed, but there was in any event ho proof of the value of any use or occupation which could be charged against it. Nor does the fact that the commissioners report that they have made awards representing “ full compensation for all damages ” determine the question, when it is apparent that they have included no interest as part- of -the award. , In Matter of Mayor (40 App. Div. 281) it was-said: “Upon both principle and authority the property owners were entitled to the cash value of their lands upon the 9th day of January, 1895, and the obligation of the city to pay that cash value (when ascertained) as of. that date then accrued. Upon that obligation the right of interest rests. If the property owners were then entitled to their money, they were equally entitled to its use or to the legal substitute for its use.” That case was followed in Matter of Riverside Park (59 App. Div. 603; affd., 167 N. Y. 627). So in Matter of Minzesheimer (144 App. Div. 576; affd., 204 N. Y. 272) it was held that the legal closing of a street under the Street Closing Act involves the destruction of the abutter’s street easements which are property and for which just compensation must be made; that in estimating such compensation it is the duty of the commissioners to ascertain the loss to the abutters as of the date when the street was legally closed, adding thereto interest to the date of their report; that such loss and interest taken together
The order appealed from must, therefore, be reversed, with , ten dollars costs and disbursements, and the motion to confirm the report of the commissioners denied, with ten dollars costs and the report recommitted to the commissioners with instructions to report specifically whether or not they had included any allowance for interest in their awards; if so, to state what amount, if any, they have allowed against the same for the use of the property; and if they have not allowed any interest upon the amount of damages found, then to amend their report by including the same in their award.
Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to confirm report denied, with ten dollars costs, and report recommitted to commissioners as stated in opinion.