Shephard v. Mayor, Aldermen & Commonalty , 13 How. Pr. 286 ( 1856 )

Roosevelt, Justice.

There is no ground for a bill of foreclosure. The park act, and the proceedings under it, have operated already as a foreclosure and sale. An award was made to the plaintiff by name for the amount of the mortgage. That award, duly confirmed, is, in law, a special judgment, merging the mortgage, and to be enforced as a special judgment.

By the act of 1813, unmodified, the award would have been payable in four months; but even then no suit could be brought without first applying for payment to the common council, and no interest was allowed except from the time of such “ application.” The park act, in making the awards payable immediately, was intended merely as a repeal of the four months’ clause, and of the time from which interest should commence. It never could have been supposed that the city, without any application to the common council, and without any opportunity to raise the funds, was to be subjected forthwith to an indefinite number of suits.

The old statute, as to public places, was declared to be the law of the new park, except as otherwise provided. I see no inconsistency in making the award payable immediately, so as to draw interest, and yet requiring an application before suit.

No such application having been made, (in addition to the other objections stated,) the suit must be dismissed, as to the city, as premature, with costs.