148 N.Y.S. 1080 | N.Y. Sup. Ct. | 1907
The comptroller has refused to pay the award made to the Sea Beach Railway Company by the street opening commissioners, on the ground that a mortgage covering the property taken has not been released. The land taken for street purposes consists of two railroad strips about 10 feet wide and 40 feet long, one on each side of Third avenue. The mortgage is for $650,000, on all the property of the railway company, made to the trustees to secure the bonds of the company.
In Spears v. Mayor, 87 N. Y. 359, 373, we find these words:
“It is undoubtedly true that the city would be justified to pay the person named in the award, unless it had received notice of an adverse claim. After such notice, * * * the city would pay * * * at its peril.”
What the commissioners may have done regarding these mortgagees, or what consideration they gave their interest, I do not know; nothing is said about the matter in the papers on this motion, but it may be that the amount of property taken was so very small that they did not think the security of the mortgage lessened, or that there was any compensation “which ought justly” to be paid to them (section 980 of the charter).
For the above reasons, I shall grant the motion of petitioner, and direct payment to it of the award- made, with interest from the date of the report.