123 N.E. 492 | NY | 1919
In October, 1906, the Supreme Court confirmed the report of commissioners of estimate and assessment in proceedings to acquire title to West Thirteenth street, in the borough of Brooklyn, city of New York. The report made an award of $875 to the unknown owners of damage parcels Nos. 1 and 2. It imposed on the abutting premises a benefit assessment of $1,918.57. The owner of the abutting premises was stated in the report to be Anna E. Denyse. In reality, the owner was one Andrew G. Cropsey, who held an unrecorded deed. In 1914 the widow and heirs of Mr. Cropsey conveyed the land, subject to this assessment, to the petitioner, William H. Nunez, and the administrator of the estate of Mr. Cropsey assigned to Mr. Nunez the award. Both land and award thus remained in the same ownership. Thereafter Mr. Nunez conveyed the land to one Mabel Jones "subject to all valid liens for taxes and assessments," but retained the award for himself. In 1916 he made application to the court for the payment by the city of New York of the amount of the award with interest. In opposition, the city asserted the right to offset the assessment. The right was denied at the Special Term, and upheld at the Appellate Division. An appeal to this court followed.
We think the set-off of assessment against award was properly sustained. The rights of the parties must be sought in the statute as it stood in 1906 (Greater N.Y. Charter [L. 1901, ch. 466], chap. XVII, title 3). The amendments of 1915 (L. 1915, ch. 606) do not apply to proceedings already instituted under earlier statutes (L. 1915, ch. 606, sec. 4). But we think that under those statutes as under the later one, the right of set-off is implied in the statutory scheme. Compensation is to be made to those persons to whom "the loss and damage" caused by the improvement "shall be deemed to exceed" the benefit and advantage, "for the excess of the damage over and above the value of the benefit" (L. 1901, ch. 466, sec. 970). *250
Interest is not to be demanded by the city except upon the excess of the amount to be paid over and above the amount to be received (L. 1901, ch. 466, sec. 1007, as amended by L. 1906, ch. 658). These sections do not, like the present statute (L. 1915, ch. 606, sec. 988), confer the right of set-off in so many words. We think they do confer it, however, by reasonable implication. That has been the prevailing view in the Supreme Court (Matter ofBankers' Investing Co.,
The question remains, however, whether the right of set-off was extinguished by the assignment of the award. We think our holding should be that the right is unimpaired. This is not a question of counterclaim under the Code. It is one of set-off under a special statute, with an independent scheme of remedies. The award in the hands of its first owner was subject to set-off to the extent of any benefit assessments upon the lands of the same owner. The set-off did not grow out of any theory that the owner had become personally liable for the payment of the assessments. It may be that he was not *251
personally liable. He was not named as owner in the assessment (Charter, sec. 894), and there is no evidence that payment had ever been demanded (Charter, L. 1901, ch. 466, sec. 1004). The significance of these circumstances we need not now determine. His duty to submit to set-off had no relation to his personal liability. It existed because the statute said it should exist. It continued though personal liability might be postponed or even destroyed. It grew out of his position as owner at the confirmation of the report. Not common ownership thereafter, but common ownership then, is the tie that links together assessment and award. The owner accepting the award, accepts it subject to the burden. But if that is true, he does not relieve it of the burden when he assigns it to some one else. The assignee of a chose in action is subject to all the equities which attach to the thing assigned as against the assignor (Smith v. Parkes,
16 Beav. 115; Roxburghe v. Cox, 17 Ch. Div. 520, 526;Central Trust Co. of N.Y. v. West India Improvement Co.,
The order should be affirmed with costs.
HISCOCK, Ch. J., CHASE, HOGAN, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Order affirmed. *252