94 N.Y.S. 221 | N.Y. App. Div. | 1905
Lead Opinion
The plaintiff was the owner, as tenant in common, of an undivided one-fourth part of certain real property described in the complaint herein. On the 14th of July, 1896, proceedings were instituted by the mayor, aldermen and commonalty of the city of New York, the predecessor of the present city of New York, to acquire title to lands and tenements in the eleventh ward of the city of New York for the purpose of a public park; and among the parcels of lands embraced in the proceedings was the property described in the complaint. An award was made to the plaintiff for his interest in the property, and it was confirmed on the 13th day of June, 1900. The plaintiff, claiming to be entitled to the award, after demand upon the comptroller, sued the city for the amount thereof. The defendant, the City of New York, in answering the complaint, set forth as a distinct defense that it had fully paid and discharged the award to Melvin Stephens, a receiver in supplementary proceedings of the property of the plaintiff. It also set forth in its answer that the plaintiff did not at the time of the demand have any right, title or interest in or to the award sued
The principal ground urged in support of the demurrer is that the lien of the judgment upon the real estate of ,the plaintiff or upon the award had expired by reason of the ten-year limitation contained in section 1251 of the Code of Civil Procedure, by which it is enacted that, except as otherwise specially prescribed by law, a judgment binds and is a charge upon, for ten years after the filing of the judgment roll, and no longer, the real property and chattels real in the county in which the judgment is docketed, which a judgment debtor has at the time of docketing the judgment or which he acquires at any time afterward and within the ten years. "Interpretation has been given to this provision of the Code of Civil Procedure as applied to a lien upon property in the hands of a receiver in supple
It is not open to doubt that the lien of the Wheeler judgment in this case upon the real estate of Van Loan or upon the award would have ceased at the expiration of ten years if other provisions of law are not to be taken into consideration as extending the lien. But it is provided by section 1255 of the Code of Civil Procedure that the time during which a judgment creditor is stayed by express provision of law from enforcing a judgment is not part of the ten years to which the lien of the judgment is limited. (See Matter of Holmes, 131 N. Y. 84.) The receiver here represents the judgment creditor. He was entitled to the possession of the real estate of the judgment debtor. The judgment was docketed on the 3d of January, 1891. The city paid the amount of the award to Stephens as receiver on the 4th day of January, 1901, only a day or two after the ten years. It is assumed that the ten years of the existence of the lien of the judgment would have expired at midnight on the 2d of January, 1901 (Aultman & Taylor Co. v. Syme, 163 N. Y. 60), but there is an express provision of law which continued it beyond the ten years. That provision is to be found in section 4 of chapter 320 of the Laws of 1887, which is an “ act to provide for the location, acquisition, construction and improvement of additional public parks in the city of New York,” and it enacts that the mayor, aldermen and commonalty of the city of New York shall, within four calendar months after the confirmation of the report of the commissioners of estimate, pay to the parties entitled thereto the respective sum or sums, estimated and reported in their favor respectively, with lawful interest from the date of confirmation, and in default thereof \ said persons or parties respectively, their heirs, etc., may
It is contended, however, that the payment made by the city to the receiver of the amount of the award cannot be recognized because the award consists of money; that it is personal property and property acquired subsequently to the appointment of Church, the first receiver, and that the title of Stephens, as Church’s successor, related back to such property only as Church might have taken into his possession. That an award made for lands taken under proceedings in eminent domain is personal property is true. It is compensation for the land and if the right to compensation accrues to a decedent in his lifetime, it passes to his administrators or executors ; but if it accrues after his death, the right to it is in the heirs or devisees. (2 Lewis Em. Dora. [2d ed.] § 320.) In Matter of Seventh Avenue (59 App. Div. 177) it is said that it is well settled that “ an award is not land, and is only treated as land in equity when necessary to adjust the rights of the parties. An award is a claim or right personal to the owner of the land. It is personal property that passes at death to the personal representative and not to the heir.” (Citing King v. Mayor, etc., of New York, 102 N. Y. 171.) But at the same time, where land is taken for public use, the damages awarded take the place of the land in respect to all the rights and interests dependent upon and incident to it. (Utter v. Richmond, 112 N. Y. 613.)
The award made for the taking of the plaintiff’s real property in the proceedings mentioned in the pleadings herein remained subject to mortgage or judgment liens. The lien of the Wheeler judgment was not destroyed by the conversion of the land into personal property, but was transferred to that personal property, and that lien having been kept alive by virtue of the provisions of law above referred to, the receiver was entitled to the amount of the award at the time it was paid to him.
O’Brien and Hatch, JJ., concurred; Laughlin, J., dissented
Dissenting Opinion
Wheeler, as trustee, recovered judgment against plaintiff, who then owned the land for which the award was subsequently made. At the instance of the judgment creditor a receiver of the property of the judgment debtor was duly appointed. The real estate was not transferred to him, and consequently, as he only took title to the personal property then owned by the judgment debtor, he took no interest in the land or in the award thereafter substituted therefor, which then became personal property perhaps subject to the lien of the judgment. The receiver, however, did not take title to the judgment which belonged to the judgment creditor, nor was he the agent of the latter to receive the award in judgment. His powers and duties were regulated and prescribed by the Code of Civil Procedure, sections12432-2471. Payment to him, therefore, did not discharge the plaintiff’s lien.
Judgment affirmed, with costs.