People ex rel. Fitch v. Lord, 48 N.Y.S. 1065

48 N.Y.S. 1065 | N.Y. App. Div. | 1897

O’Brien, J.:

The appellant insists that the claim was filed by, and the award made to, the wrong parties. It is certain that the claim as filed did not conform to the act, because the claimants Henry Zubiller and Louis Schaefer must be regarded legally as strangers to the title. They were administrators with the will annexed of the original owner, executors of the will of the life tenant, and guardians, under the will of the mother, of the infant children remaining. But in neither of these capacities did they take any title to or become owners of the property.

It is admitted by the return that these claimants never had title to the property in question, “ except as guardians as aforesaid.” But the guardians have not title to the infants’ property. Furthermore, the commissioners made the award to the claimants as administrators, instead of as guardians; and if that determination is to stand, their rights as guardians are not strictly involved. It was said in the case of People ex rel. Fitch v. Lord (9 App. Div. 460), which involved a claim before these same commissioners and a construction of the acts in question upon another point: “ The acts are themselves remedial and should be liberally construed. (People ex rel. Purdy v. Fitch, 147 N. Y. 355.) Such legislation, as was said in People ex rel. Brisbane v. Zoll (97 N. Y. 203), ‘ should receive a just and liberal construction which will tend to'advance the remedy.’ ”

The difficulty here, however, is that no construction, however liberal, which would stop short of an attempt on our part to make new legislation, could aid the respondents. The act expressly limits the right to file a claim and to prove and recover damages to “ persons owning lands; ” and it is admitted by the return that these claimants never had any title to the property in question “ except as guardians as aforesaid.” But the guardians as such have no title to the infants’ property. Apart from this, as the commissioners have made the award to the claimants as administrators instead of as guardians, their rights as guardians are not involved. Whether we regard the claimants as administrators with the will annexed of the original owner, as executors of the will of the life tenant, or as guardians under that will of the two infant children as remainder-men, in none of these capacities have they title to the property. Legally, their claim is in a capacity adverse to the children who, as remaindermen under the will of their father, were at the time of the passage of the act, and now are, vested with the fee as tenants in common. It is clear that the award to the claimants as administrators of the original owner cannot be sustained, because it would be in derogation of the title of the true owners of the property. The testator of the claimants died before the passage of the act, at a time when no right to recover for change of grade existed. At common law, no such right was given, and it has been obtained purely by force of the statute, and only the persons upon whom the statute conferred the right to such awards are entitled to file a claim therefor or to receive it.

It appearing then, as said, that these claimants at the time of the filing of the claim and the making of the award were strangers to the title, the judgment of the commissioners must be reversed and the claim dismissed, with costs.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Judgment of commissioners reversed and claim dismissed, with costs.