116 N.Y.S. 495 | N.Y. App. Div. | 1909
This appeal is taken by the plaintiff and petitioner from an order of the Special Term to raise the questions of interest upon an award in • proceedings by the village of White Plains to condemn the real property of a water works company, and of the additional allowance. The first award of the commissioners, made in 1898 and confirmed, by the Special Term on September 1, 1898, was $103,298. The order of confirmation provided that the plaintiff and petitioner pay such award to the said owner and certain lienors thereof, or "deposit with the county treasurer of Westchester county the said sum to the credit of the said owner and its lienors, subject to the further order of the court, and Upon such payment or1 deposit the plaintiff and petitioner was authorized to enter and to take possession of the property. The petitioner, on or prior to September 1, 1898, offered to pay the award to the said owner, which was refused, and thereupon and on said day deposited the said award and also $5,164.90, the additional allowance, with the said county treasurer to the credit of the proceedings and in accord with the said
As such interest was not provided for by contract, express or implied, or by statute, the defendants’ right thereto must arise from a default on the part of the plaintiff. (Matter of Trustees, etc., 137 N. Y. 95.) The statute (Code Civ. Proc. § 3371) provides that “if the report is confirmed, the court shall enter a final order in the proceeding, directing that compensation shall be made to the owners,” and that upon payment thereof “ the plaintiff shall be entitled to enter into the possession of the property condemned, and take and hold it for the public use specified in the judgment.” And the same section provides that “ deposit of the money to the credit of, or payable to the order of the owner, pursuant to the direction of the court, shall be deemed a payment within the provisions of this title.” Aside from the tender or offer of payment, this deposit made satisfied the constitutional provision as to just compensation. (Matter of N. Y. C. & H. R. R. R. Co., 60 N. Y. 116.) In that case the court, per Rapadlo, J., say : “ It is further objected that the order of confirmation is in violation of the constitutional provision against talcing private property for public use without just compensation, inasmuch as it does not direct the compensation to
■ How, then, can the plaintiff be said to be in default, that it should pay interest as damages therefor ?
But it is contended that as the defendants appealed they might have jeopardized their appeal or affected it by taking compensation before the appeal was disposed of. The right of appeal in such proceedings is not inherent; the Legislature could subject such right when conferred by it to conditions. Accordingly the statute (Code Civ. Proc. § 3375) provides : “ The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the
Each party in the ca,se at bar may find in other States decisions which support his contention. Lewis on Eminent Domain (2d ed. § 499) cites some of them. Examination of the opinions in such cases as make for the respondents shows that the results reached rest upon the general principle that the owner is entitled to payment of his com pensation at the time petitioner and plaintiff gains possession of the land, and hence if the owner be kept out of his compensation he is entitled to interest thereon as damages for a default. (Hayes v. Chicago, Milwaukee & St. Paul R. Co., 64 Iowa, 753; Atlantic & Great Western R. Co. v. Koblentz, 21 Ohio St. 334; Sioux City, etc., R. R. Co. v. Brown, 13 Neb. 317; Chicago, Rock Island & P. R. Co. v. Buel, 56 id. 205; Selma, Rome & Dalton R. R. Co. v. Gammage, 63 Ga. 604.) The cases which make for the appellant rest upon the proposition that when the owner is tendered or may obtain
I think that the defendants are entitled to an additional allowance of costs upon the amount as awarded by the result of the report of the second commission. It appears that of this sum the plaintiff “paid by deposit” $5,164.90. Therefore, the defendants are entitled to such further sum as against the plaintiff as shall represent five per cent of the award as finally determined.
Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Order in so far as appealed from modified in accordance with the opinion, and as so modified affirmed, without costs of this appeal to either party. Settle order before Mr. Justice Jenes.
See 55 App. Div. 77; 71 id. 544 ; 176 N. Y. 239.—[Rep.
See Laws of 1850, chap. 140, § 19.— [Rep.