143 N.Y.S. 1086 | N.Y. App. Div. | 1913
August 10, 1910, lands of the relator situate in the county of Monroe were appropriated by the State for barge canal purposes. A claim on account thereof was duly presented, and in May, 1911, was heard by the Court of Claims. July 29, 1911, chapter 856 of the Laws of 1911 (amdg. Code Civ. Proc. § 263 et seq.), restoring the Board of Claims and in effect abolishing the Court of Claims, went into effect. July 31, 1911, the claimant received notice from Charles E. Palmer, the clerk of the former Court of Claims, that an award had been made upon said claim. The new Board of Claims, consisting of the appointed commissioners, was organized early in October, 1911, by the appointment and qualification of three commissioners, and on October twentieth the Board appointed John V. Sheridan its clerk.
November 25, 1911, the relator- received from said Palmer a certified copy of the judgment of the Court of Claims, dated November 14, 1911, noted as decided July 29, 1911, signed Charles E. Palmer, clerk, and certified by him as clerk of the Court of Claims, awarding the relator $9,000, with interest from August 10, 1910, to November 14, 1911, and $40 costs, amounting in all to $9,121.
December 15, 1911, the relator filed with the respondent Comptroller said certified copy of judgment and the certificate of the Attorney-General that no appeal would be taken from the judgment, and December 19,1911, the relator received from the Attorney-Genéral a notice that the title, abstracts of which had been furnished by relator, was approved and in the
January 21, 1912, relator received from the Comptroller a letter saying that he could not pay the judgment until he had received the opinion of the Attorney-General relative to the jurisdiction of the Court of Claims and the Board of Claims. Thereafter the Attorney-General informed the relator that the judgment being certified by the clerk of the Court of Claims, and being a judgment instead of a determination, was irregular and could not be recognized and paid. February 27, 1912, the Court of Appeals in the case of People ex rel. Swift v. Luce (204 N. Y. 478) affirmed, by a closely divided court, the lower courts in holding that chapter 856 of the Laws of 1911, abolishing the Court of Claims and re-establishing the Board of Claims, was constitutional. The Attorney-General thereupon advised the Comptroller that the former clerk of the Court of Claims had no power to certify a judgment or determination after the appointment of his successor as clerk of the Board of Claims. March 7, 1912, the State Comptroller obtained a certification of the said judgment by the clerk of the Board of Claims and on March ninth, inserting that date in said undated receipt, issued his warrant for the said sum of $9,753.40, which was received by the claimant March twelfth, and which, as has been stated, included interest for twenty days after November fourteenth, the date of the entry of judgment, or to December fourth. The judgment amounted March 9, 1912,
The contention of respondent that relator is not entitled to interest is based mainly upon the alleged failure of relator to file a duly certified copy of the judgment with the Comptroller prior to March Y, 1912.
Respondent contends that Clerk Palmer was legislated out of office July twenty-ninth, and that, therefore, the certificate made by him and attached to the judgment or determination was invalid, and hence that the Comptroller was not authorized to pay the judgment. Section 269 of the Code of Civil Procedure provides (the words “ Court of Claims ” being construed “Board of Claims ” as provided by said act of 1911) that no judgment or determination shall be paid until there shall be filed with the Comptroller a copy thereof duly certified by the clerk of the Court of Claims, and that the determination of the court shall be by a judgment or determination to be entered in a book to be kept by the clerk for that purpose and signed and certified by him. But, if Palmer had no authority to certify the judgment or determination, he had no authority to enter, sign and certify it as was required by law in order to constitute the decision a judgment or determination. Hence, no judgment had been entered and none existed until the certification by Clerk Sheridan, which act the State recognized and accepted as creating a valid determination and certification and thereupon paid the amount specified in the warrant which it had no authority to do prior to that time.
Relator was, therefore, entitled to interest upon the award from the time of the appropriation of the property, August 10, 1910, to the time of issuing the warrant therefor, March 9, 1912, pursuant to section 269 of the Code of Civil Procedure, providing that interest shall be allowed on each judgment from the date thereof until the twentieth day after the Comptroller is authorized to issue his warrant for the payment thereof, or
The case of People ex rel. Evers v. Glynn (126 App. Div. 519), a decision of this court, is cited by respondent as authority for the contention that relator is entitled to interest for not exceeding twenty days after the date of entry of judgment, November fourteenth. But, in order that this decision shall be applicable, the judgment or determination so entered by Clerk Palmer must have been legally entered, which respondent claims was not the fact. Moreover, the facts in that case were very different from those in the case at bar. In that case a valid judgment had been entered from which claimant had appealed. The Comptroller was prepared and willing to meet the obligation from the time of the entry of the judgment, but the relator delayed presenting the necessary vouchers and other papers which would authorize the Comptroller to make the payment until after the determination of the appeal. The relator had not been prejudiced by the failure of the clerk of the court to furnish her a duly certified copy of the judgment, as section 269 of the Code of Civil Procedure required him to do within ten days after the entry thereof.
As the court remarked, all the delays were chargeable to the relator. In the case at bar the relator has been guilty of no delay and has acted in good faith. The certified copy of the judgment which he furnished the Comptroller was the identical paper which had been served upon him by a State official as in compliance with a statutory requirement, and he promptly furnished all other papers required to be furnished by him, all of which were retained by the Comptroller.
All concurred.
Final order reversed, with costs, and mandamus directed as per opinion, with ten dollars costs and disbursements.