124 N.Y.S. 824 | New York Court of Claims | 1910
The claimant was a tenant on property appropriated by the state June 5, 1908, and produced in court a written lease dated March 31, 1906, for five years expiring March 31, 1911, leaving an unexpired term of 2 years, 9 months, and 26 days. The lease was made between Daniel E. Rairdon, owner, and Frank J. Lester and the claimant, as copartners, for carrying on a blacksmith business on the appropriated property. Before the appropriation Rairdon had sold the property to one Sheridan, and he, in turn, had con
The state’s settlement with the owner includes an adjustment of all of the damages for the appropriation of the property, and out of the amount agreed upon, in the absence of any agreement to the contrary, must come all of the liens and incumbrances against the property. The lease is an incumbrance (Forster v. Scott, 136 N. Y. 577, 32 N. E. 976, 18 L. R. A. 543), and, unless there was some fraud or misrepresentation or misunderstanding when the agreement was made with the state appraiser, the value of the leasehold interest must, come out of the amount agreed to be paid to the owner. A situation like this is provided for in the canal law (Consol. Laws, c. 5, § 88), which says that:
“When damages áre awarded for the appropriation of any lands or waters to the use of the canal and it appears that there is any lien or incumbrance on the property so appropriated, the comptroller may deposit the amount awarded in any bank in which moneys belonging to such account may be deposited to the account of such award, to be distributed to the persons entitled to the same on an application to the Supreme Court of any person.”
The claim should be dismissed and the claimant remanded to his remedy against the fund created by the agreement between the owner and the state which takes the place of the property appropriated and out of which any liens and incumbrances must be paid (Matter of New York, W. S. & B. R. R. Co., 35 Hun, 633; Matter of City of New York, 120 App. Div. 700, 105 N. Y. Supp. 779), unless the owner is brought into court as a party to this proceeding, and consents to have the interests of the claimant determined by this court (Anderson v. Reilly, 66 N. Y. 189).
SWIFT and MURRAY, JJ., concur.