Matter of Minzesheimer v. . Prendergast

By the order appealed from the comptroller was directed to pay the appellant interest on an award made to him in the Walton avenue proceeding from July 27, 1906 (thirty days after demand), to the date of payment. The appellant seeks to compel the comptroller to pay him interest on such award from November 2, 1895, the date when a map was filed pursuant to section 2, chapter 1006, Laws of 1895, omitting certain streets fronting upon lands owned by the appellant, to July 27, 1906. It is provided in section 14 of said act of 1895 that when application is made by a person interested in land fronting upon a street that is discontinued and closed as provided by said act, the court may order the same commissioners of appraisal or of estimate and assessment appointed to open any street in the neighborhood of the land of such person to ascertain and determine "The compensation which should justly be made for any loss and damage to the respective owners, lessees, parties and persons respectively entitled in possession, reversion or remainder unto, in and to, or included in any lands, tenements, hereditaments, premises, easements, rights or interests taken, affected or damaged by and in consequence of the discontinuance or closing of said street." And it is also further therein provided that "The proceedings to ascertain and determine the same shall be conducted and completed in accordance with the provisions of existing laws relative to the opening of the street or avenue for which the said commissioners were appointed."

It is claimed by the appellant that the laws existing when the proceeding to acquire lands to open Walton avenue was commenced were contained in the Consolidation Act and charter of the city of New York (Laws of 1882, chap. 410), and that section 992 of the Consolidation Act, as amended by chapter 660 of the Laws of 1893 and chapter 449 of the Laws of 1895, provided that "All damages awarded by the commissioners of estimate and assessment with interest thereon from the date when title to the lands shall have vested in the mayor, aldermen and commonalty of the city of New York, as provided in this chapter, * * * shall be paid * * * to the respective persons * * *."

The demand for a reversal or modification of the order appealed from is based upon the quoted provision from the Consolidation Act read with the quoted provisions from said act of 1895.

When it appears upon an application for the payment of an award made for damages by reason of closing a street as provided by said act of 1895, that although the original proceeding was commenced prior to the Greater New York charter taking effect (January 1, 1898), that the award was made by the commissioners of estimate and assessment as provided by section 990 of the Greater New York charter, which was in force at the time when the appellant obtained the order to have his damages assessed by said commissioners and at the time when the report of the commissioners was made, the courts are not required to so interpret the language of the act of 1895 as to require that interest be added to such award from a time prior to the date of the report.

A uniform rule for the assessment of damages makes it desirable that, so far as it is not specifically provided by the act of 1895, the provisions of the charter existing at the time of the award should govern. (Matter of Edelmuth, 202 N.Y. 602.)

We concur in the opinion of SCOTT, J., delivered herein at the Appellate Division. The order should be affirmed, with costs.

CULLEN, Ch. J., HAIGHT, VANN, WERNER, WILLARD BARTLETT and COLLIN, JJ., concur.

Order affirmed.