189 A.D. 814 | N.Y. App. Div. | 1919
To state the facts briefly, the defendant is the owner of real property on Jamaica avenue, in Woodhaven. The plaintiffs have recently constructed an elevated railroad structure through that avenue, adjoining the defendant’s property. The plaintiffs, desiring to procure the right to build this elevated structure and to extinguish the defendant’s easements of light, air and access, instituted this proceeding by the usual petition. The defendant appeared and interposed an answer. Judgment of condemnation was thereafter entered, which recited that the defendant had brought an action against the plaintiffs and in that action had applied
When the motion came on to be heard, the Special Term ordered that the report be remitted to the commissioners for the purpose of having them compute the interest and to make an amended report. The commissioners then made an amended report in which they computed the interest allowed by them. The defendant claims that this computation was not from the time that plaintiffs took possession. The allowance of interest made by the commissioners was, however, from the time of taking possession “ to the fullest extent.” The defendant moved to have such report set aside, while the plaintiffs asked that the award be confirmed, but without interest. The Special Term has granted the motion of the plaintiffs to confirm the awards without interest upon the ground that there was no authority for the commissioners to award interest, and it also denied the motion to make the receiver a party and for new security.
I am unable to agree with the learned justice at Special Term in his conclusion that there is no authority for allowing interest. It is true that interest is not usually allowed in condemnation proceedings; it is also true that possession is not usually taken until the award is paid, and there is no reason, therefore, for awarding interest. But in this case the plaintiffs had possession of the property and also possession of their money which was to pay for the property. It, therefore, seems to me to be clear that the defendant was entitled to interest upon the amount of her damages from the time the plaintiffs took possession. This time has been fixed by the commissioners and the interest has been computed, and the defendant was entitled to it.
The cases cited by the plaintiffs in opposition to the claim for interest do not seem to be in point. On the contrary, there are a number of cases which bear out the defendant’s claim for interest. In Moore v. New York Elev. R. R. Co. (126 N. Y. 671), which was an action brought to recover for damages to plaintiff’s premises arising from the construction and operation of an elevated railroad in a street upon which they fronted, the Court of Appeals said: “ In actions
In Panhandle & G. Ry. Co. v. Kirby (108 S. W. Rep. 498) the Texas Court of Civil Appeals said: “ While it is true that the statute prescribing the measure of damages for the condemnation of lands makes no mention of interest, we see no reason why interest may not be recovered as in other cases of appropriation. For all purposes necessary in the construction and operation of appellant’s road appellee was deprived of the land and injured to the extent of the depreciation, if any, caused by the condemnation, when appellant actually condemned and appropriated its right of way, which the record shows was about the 12th day of April, 1902, and we see no reason why in such case interest should not be allowed thereon from that date. That date fixed the period when appellant, under the forms of law, actually appropriated part of appellee’s property.”
In Old Colony Railroad v. Miller (125 Mass. 1) the court states its views upon this subject as follows: “ The right of the landowner to damages for land taken by a railroad corporation is complete when the location is made. That act constitutes the taking. It is the loss occasioned by the exercise of the right of eminent domain at that time, for which the statutes provide indemnity. The amount is then due, and, if agreed upon by the parties, must be then paid. If not agreed on, the damages are assessed by a jury on the application of either party; but they are assessed as of the time of the location, and the jury may properly allow interest upon the amount ascertained as damages, for the detention of the money from the time of the taking.”
This question was discussed by Mr. Justice Jenks in Matter
I think that from the above cases the conclusion is justified that where the petitioner takes possession of the land and does not pay the award until a subsequent time, the owner is entitled to interest thereon. The right to this interest may not be absolute in all cases and may rest in the discretion of the commissioners. In the present case it might be unjust to allow interest from the date of the entry of the order permitting the petitioners to take possession of the easements. It was competent for the commissioners to determine when the petitioners entered into possession, and they were justified in allowing interest from that time. Further than this, section 3371 of the Code of Civil Procedure fixes the power of the court in relation to reports of commissioners in condemnation proceedings and that power is limited either to confirming or to setting aside the report. (People v. Dawson, 87 Misc. Rep. 588; Matter of New York Municipal Railway Corporation v. Welz & Zerweck, 181 App. Div. 896.)
The appellant also urges that she was entitled to have the receiver made a party to the proceeding. The purpose of this is clear. She desires to have an adjudication that will bind the receiver. An adjudication to which he is not a party will not bind him. The property in his hands cannot be reached except by some form of action to which he is a party. This portion of the motion was denied upon the ground that leave of the court had not been obtained. In Barton v. Barbour (104 U. S. 126, 128) it is said: “ It is a general rule that before suit is brought against a receiver, leave of the court by which he was appointed must be obtained.”
The defendant also appeals from that portion of the order which denies her motion to compel the receiver to give further or other security in place of the undertaking theretofore given by the plaintiffs in which the Brooklyn Rapid Transit Company was named as surety. This is the undertaking hereinbefore recited in the amount of $75,000, given pursuant to section 20 of the Rapid Transit Act (Laws of 1891, chap. 4, § 23, renum. by Laws of 1909, chap. 498), as amended by chapter 506 of the Laws of 1910 and chapter 510 of the Laws of 1913, to secure immediate possession of the easements condemned in this proceeding. As above recited, a receiver has been appointed of both plaintiffs and their surety in that undertaking. If I am correct in my conclusion that the receiver could not be made a party without the consent of the court, by which he was appointed, I think it necessarily follows that this portion of the motion was also rightly denied. If the Supreme Court cannot make the receiver a party, I cannot see how it can compel him to file security in that same proceeding. This denial, however, should also be
The order appealed from seems clearly to condemn and turn over to the plaintiffs the defendant’s entire property instead of the easements sought to be condemned and for which awards were made. This is clearly erroneous. The order appealed from should be modified in accordance with the views herein expressed, and as modified affirmed, without costs.
Jenks, P. J., Rich, Putnam and Blackmar, JJ., concurred.
Order modified in accordance with opinion; and as so modified affirmed, without costs. Order to be settled before Mr. Justice Jaycox.