139 N.E. 267 | NY | 1923
The action is brought to recover $91,432.14 interest on the amount awarded in condemnation proceedings accruing after the entry of the order of confirmation. The principal of the award and a portion of the interest have been paid. A dispute arises as to the liability of the city for the interest herein sued for.
The facts are stated in the opinion of the court below. (Woodward-Brown Realty Co. v. City of New York,
The theory of the plaintiff is that this section should be construed literally; that the refusal of the comptroller to pay interest in full presented in this case a litigable question; that the summary proceeding does not apply because this is a controversy, not over the award, but over the interest due the plaintiff on the award; that the award and the interest admittedly due have been paid, and that the refusal of the comptroller to pay in full the interest demanded by plaintiff accruing after the award takes the case out of the prohibition of the charter.
When condemnation proceedings are instituted by a municipality, if a way of payment of the award is prescribed by statute it must be strictly pursued. (Matter of *281 Department of Parks,
If we took some words from the opinions in the Grote case apart from the context as a negation, applicable, everywhere and at all times, that interest is part of the award, the decision below might be upheld, but if we read the provisions of section 981 of the charter as a whole, it is plain that no such dogmatic assertion is applicable here to exclude the summary charter remedy. What was there set down was not "recorded for a precedent" in this case. Section 981 provides: "Interest shall cease to run on the sums awarded as damages six months after the date of the filing of the final decree or after the date of the entry of the order confirming the report of the commissioners of estimate, as the case may be, unless within that time demand therefor, in writing, be served upon the comptroller." Interest runs on the amount of the award and is paid as a matter of course with the award, when no dispute arises as to the amount of interest due. The theory is untenable that a splitting of remedies is permissible when a dispute arises as to the amount of interest *282 due. The words "awards, costs and expenses" in their natural sense in this connection, include the interest on the award. One complete remedy will be presumed if possible.
The Special Term, therefore, properly dismissed the complaint. The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in this court and the Appellate Division. First question certified not answered. Second question certified answered in negative.
HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgment accordingly.