87 N.Y.S. 308 | N.Y. App. Div. | 1904
Lead Opinion
This controversy arises upon a difference of opinion as to the amount of interest to which the appellant was entitled on July 17, 1903. Under chapter 665 of the Laws of 1897 the city was authorized to extend Riverside drive. The commissioners of estimate and assessment completed and- signed their report Fovember 29, 1902. Under the terms of the act title to the land vested in,the city Seutember 22, 1900. The commissioners in their report awarded to the relator for the land taken the sum of $11,500 as the value of such land on the 22d day of September, 19Ó0, when title vested in the city, and the further sum of $1,508.41 interest thereon from the date of the vesting of title to the date of their report, making the total award $13,008.41. On April 23, 1903, the appellant relator filed a demand with the comptroller for the payment of this sum of $13,008.41, with interest thereon from the 29th day of Fovember, 1902, the date of the report. On July 17,1903, the comptroller had a warrant ready to pay what he considered was the amount due to the appellant, to wit, $13,272.91, which represented $11,500, with interest from September 22, 19Q0, to April 17, 1903, the date of-the confirmation of the report. The appellant claimed that upon that date the amount due was $13,498.39, a difference of $225.48., The appellant received the warrant drawn by the comptroller as a payment on account without waiving her claim for the full amount of all she claimed. She then made an application for a peremptory writ of mandamus to compel the comptroller to audit the balance of-the amount claimed by her, and from the order denying such application this appeal is taken.
The act under which this award was made provides in section 6
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Van Brunt, P. J., Patterson and Ingraham, Jj., concurred.
Dissenting Opinion
(dissenting):
This is an appeal from an order denying an application for a peremptory writ of mandamus to compel the comptroller of the city of New York to pay the relator a specific sum of money claimed to be due and payable as a balance of interest on an award for lands taken in eminent domain proceedings. In my opinion, the right of the relator to interest is governed by chapter 665 of the Laws of 1897, being a special act relating to River fide drive as distinguished from
I am also of opinion that the relator’s right to interest after the confirmation of the report of the commissioners is not governed by the charter provisions and that under the well-settled rules applicable to municipal corporations interest would not run on the award until the making, of a demand therefor. The report of the commissioners was confirmed on the 17th day of April, 1903, and no demand was made until six days thereafter. I think that during this time interest did not run. The demand made on the 23d day of April, 1903, was erroneous in that it demanded the compound interest already stated and to which, I think,.the relator was not entitled Were it not for the decision of this court in Carpenter v. City of New York (44 App. Div. 230) I would be inclined to hold that interest should run from the date of this demand because the'prop^ erty owner then appeared and manifested a desire to receive- and a willingness to accept his award, and even though he computed and claimed interest on an erroneous basis I should think, the city, in-order to stop interest running upon the aw;ard was called upon to tender the amount to which he was legally entitled. However, in view of that decision, which I think is not distinguishable on principle from this and should, therefore, be followed, it would seem that, the demand was ineffectual to- set interest running and the relator, upon my view of the law, was not entitled .to any interest after the confirmation of the report. ■ ‘
On the 17th -day of July, 1903, the relator received from the comptroller the amount of the award, less the interest added by the commissioners, and interest thereon from thé time the title vested until the date of the confirmation of the report. This was the full amount to which he was entitled. The denial of the writ may also be sustained, therefore, upon the ground that no part of the claim is meritorious.
I, therefore, vote for affirmance.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.