50 N.Y.S. 475 | N.Y. App. Div. | 1898
We need not consider the question as to the validity of the- deeds i to Vail and Stoddard, because, assuming them to be valid, we think the complaint stated a good cause of' action for the recovery of the
The damages, when awarded to Stoddard, became a substitute for the mortgage interest. As was said in Astor v. Miller (2 Paige, 76): “ Upon the principles of eqiiity.the mortgage then became a specific lien upon the fund instead of his (the mortgagee’s) interest in that part of the land.” The rule laid down in this case has since been frequently applied and has never been questioned. That rule is succinctly stated in the head note as follows: “ Where either real or personal estate, upon which there is an outstanding mortgage, is turned into money, the rights of the mortgagee continue unaltered, and the court will direct the application of the money according to the rights of the parties as they existed previous to the alteration of the estate.” . This case was reversed upon other questions in Astor v. Hoyt (5 Wend. 603), but the rule in .question was affirmed and Chief Justice Savage said “that the mortgagees are entitledrima faoie to so much of the fund as may be considered the substitute of that part of the premises taken from the operation of the mortgage and appropriated to public use.”
Applying these principles, it would seem quite clear that the plaintiff was entitled to his share of the award in question. Stoddard’s claim is that he and he alone is entitled to the award, for the reason that the commissioners have awarded it to him and that the award has been confirmed by the court. He admits, however, that
, We think this position is unsound. The order confirming the commissioners’ report is undoubtedly final and conclusive upon all parties interested, that is, as to the essential features of the proceeding. Thus, it is conclusive as to the condemnation of the land and the amount of the award. (In the Matter of Department of Parks, 73 N. Y. 565.) It also binds the city to pay the awards to the persons to whom they are specifically given. But even this latter obligation is limited to payments made without notice of adverse claims, Where such notice has been given, the city is not bound to pay the award to the person named in the commissioners’ report. Indeed, it does so at its peril. (Hatch v. The Mayor, 82 N. Y. 436.) Its duty in that case is to interplead the rival claimants ; or, if sued by the person named in the report, to move to. substitute the adverse claimant as a party defendant, upon payment of the amount in dispute into court, as where an award is made to unknown owners. (Barnes v. The Mayor, 27 Hun, 236.) The right to the award, as between rival claimants thereto, who have not appeared before the commissioners or there litigated their adverse claims* is a subsidiary incident to the main proceeding, but is not of its essence. All parties, whether they appeared or not, are undoubtedly foreclosed as to the amount of the award, but no one is foreclosed as to his right thereto unless he has actually submitted his claim to the arbitrament of the commissioners and the action of the court thereon. The governing principle is the same whether the commissioners make the award to an unknown owner or to one whom they name as owner. That it was not the intention, as between the real owner and the. person named as such in the commissioners’ report, to finally foreclose the former, is apparent, when we see that the statute .itself confers a right of action, upon the person to whom the award of right belongs, to recover from its actual recipient the amount paid to the latter by the city as so much money had and received for the real owner’s use. (Laws of 1882, chap. 410,
The respondents contend that the rule on this head, which was laid down by Judge Earl in the Spears case, falls with the repeal of a provision in the Consolidation Act to which the learned judge referred as enforcing his position. That was a provision requiring the person to whom an award was made to prove his title in the action which the statute authorized him to bring against the city for the recovery of the award. The argument from this was, that the confirmation of the commissioners’ report could not very well be final and conclusive upon the right of recovery when the person to whom the award was made was thus called upon again to prove his title. It is true that this provision was abrogated by chapter 449 of the Laws of 1895 (§ 3, amending § 992 of the Consol. Act), which takes away the former right of action and substitutes therefor a summary application to require the comptroller to pay the amount awarded. It is also true that this summary application need not be founded upon further proof of title. The act of 1895 does not require this. But the fallacy of the respondents’ position is in supposing that the rule to which we have referred was based wholly upon this requirement as to proof of title in the action to recover the award. That was one of the arguments, and a cogent one, in support of the rule. But it was by no means the only one. Other equally substantial reasons are given by Judge Earl in support of his position, such as the fact that the “ ascertainment of the names of the persons whose lands were taken or to whom damages were to be paid was merely incidental to the main purpose ” of the proceeding.; and the further fact, to which we also have adverted, that a right of action is given to the real owner to recover what he is justly entitled to from the actual recipient. This latter consideration is quite as cogent as the requirement of • further proof of title in the action (formerly given by the statute) to recover the award. We think it quite clear,.both upon principle and authority, that the plaintiff here was not foreclosed of his right to a proportionate part of this award, either by the action of the commissioners or by the confirmation of their report.
Our conclusion is that the action was well brought, and that the demurrers to the complaint should have been overruled.
Van Brunt, P. J., ¡Rumsey, O’Brien and Ingraham, JJ., •concurred.
Interlocutory judgment reversed, and demurrers overruled, with costs, with leave to defendants to answer over on payment of costs of appeal and of the court below.