156 N.Y.S. 593 | N.Y. App. Div. | 1916
In a proceeding to acquire title to land for a street an award to unknown owners was made. Later assessments for benefits were made for a larger amount. The comptroller paid the award with interest to the chamberlain. Later the court confirmed a report of a referee that a part of the award was due the Schoonmakers, the petitioners, to discharge a deficiency judgment entered upon the foreclosure of a mortgage on the land taken and not taken, and that the remainder of the award should he paid the Edgar Improvement Company, a second mortgagee. Later, the chamberlain prepared warrants for the several sums, but refused to deliver them by reason of the unpaid assessment. Then the Schoonmakers and Edgar Improvement Company severally indorsed the warrants to the collector of assessments, and the petitioners offered to pay a balance due. But thereupon a difference arose as to the amount of the balance. The- respondents contend that the whole award may be set off against the assessment as of the date when the assessment became due and payable and hence interest-bearing. The city, as I understand, insists that no part of the award may he offset save as of the date when it was tendered. The Greater New York charter, section 1007, provides; “Whenever an estimate and assessment for loss and damage, and for benefit and advantage shall he made by the commissioners of estimate and assessment relative to the same person or persons, no interest shall be demanded from such person or persons upon the amount assessed for the benefit and advantage, except on the excess of the amount he is to pay over and above the amount he is to receive for or in consequence of any intervening time
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Jenks, P. J., Carr, Mills and Rich, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Since amd. by Laws of 1906, chap. 658. Repealed by Laws of 1915, chap. 606. See Greater R. Y. charter, §§ 988, 983, as added by Laws of 1915, chap. 606. — [Ref.