112 N.Y.S. 858 | N.Y. App. Div. | 1908
In May, 1904, commissioners were appointed in the proceeding to acquire title to Belmont street from Glay avenue to Morris avenue. They subsequently made a report by which they awarded to the respondent, for damages to his premises designated as Nos. 9 and 10 on damage map of the commissioners of estimate and assessment, $7,500, and their report was confirmed by an order of the court on the 4th of December, 1907, and notice thereof given to the comptroller, with a demand for payment of the same, together with interest thereon from the 26tli of Bovember, 1906, the time when it is claimed the title to such parcels vested in the city. The award was not paid, and a motion was thereafter made under section 1001 of the Greater New York charter
The .conclusion at which I have arrived renders it unnecessary to determine when the title to the parcels in question actually vested in the city, or whether or not the respondent is entitled to interest upon that award.
Nor is the fact that the city, after it is claimed that title vested in it, assumed control over the parcels and has since retained rents for them of any importance. Whether or not the respondent was entitled to interest depended solely upon the report of the commis
The motion, however, if it had been opposed, undoubtedly would not have been granted, and for that reason I am of the opinion that the order appealed from should he reversed, without costs to either party in this court, and the order of February 5, 1908, vacated, and upon condition that the city pay to the respondent all sums received by it for rent of the premises in question since November 26, 1906, and if such condition be not complied with, then the order should be affirmed; and if such order be vacated, the same be without prejudice to the right of the respondent to take.such proceedings as may be advised to compel the payment of the award made.
Ingraham, Clarke, Houghton and Scott, JJ., concurred.
Order reversed, without costs, and '.order vacated on conditions stated in opinion.
See Laws of 1901, cliap. 466, § 990, as amd. by Laws of-1903, chap. 418, and Laws of 1906, chap. 658.— [Rep.
See Laws of 1901, chap. 466, § 1001, as amd. by Laws of 1906, chap. 658.— [Rep.