
    Edward J. Patterson, as Administrator, etc.. Resp’t, v. City of Binghamton, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    1 Condemnation proceedings — Award—Distribution.
    Under the charter of the city of Binghamton, the city may, where the right to the award is disputed or doubtful, pay the amount to the county clerk, even though the name of the owner alone is used in the condemnation proceedings and award.
    3. Same.
    In such case, the money must he obtained by application to the court, and not by an action against the city.
    Appeal from a j udgment in favor of plaintiff.
    This action was commenced on the 17th day of August, 1892. The complaint alleges that Edward J. Patterson and Jennie Patterson were the owners of a parcel of land situated on the East side of Water street, in the city of Binghamton, in the year 1891; that the defendant, a municipal corporation, about May 13, 1891, instituted proceedings in pursuance of its charter to lay out and open through the premises a public street, 50 feet wide, known and called an extension of Henry street; that thereafter it was determined that said public street should be laid out over a portion of said land, and that it was so laid out prior to October 27r 1891; that a commission was appointed by the county court of Broome county to ascertain the damages to the land for the laying out of the street; and that subsequently, and on the 27th of October, 1891, an award in writing was made to the plaintiffs by the commissioners, awarding as damages for the laying out of the. street the sum of $6,270. Plaintiffs were to deduct the sum of $100 if they elected to remove a building on said lands. It is. alleged that the plaintiffs did so elect, and that the award became effectual and final on the 6th of November, 1891. Defendant, in its answer, admits that the plaintiffs were owners and in possession of the land described in the complaint, subject to certain mortgages and incumbrances, which are stated ; and that in May, 1891, proceedings were instituted in pursuance of the charter to-lay out and open over and through a part of the lands a public street. It also sets up that on the 5th of June, 1888, Jennie Patterson and Edward J. Patterson executed a mortgage to Charles Jehlager and another covering the lands mentioned in the complaint, which was recorded, and that the same was on the 26th of December, 1890, by the owner thereof, assigned to the-Binghamton Trust Company, and its assignment was recorded on the 11th of September, 1891; that on the 12th of September, 1891, the owner of the mortgage commenced an action to foreclose the same, and a lis pendens was filed in Broome county clerk’s office, and that the plaintiffs in this action were made parties to that action that a judgment was thereafter had directing a foreclosure and sale; and that, in pursuance of the decree, the premises were soldi on the 6th day of February, 1894, including the premises described in the complaint, to one F. W. Downs, for $6,525. A deed was executed by the referee to him; and it is alleged that he became entitled lawfully to and “ seised of all the estate, right, title, and interest, as well as all right and title to the award alleged in the complaint.” It is alleged also that the surplus ($3,774.88) was paid over to the treasurer of the county, and that, in proceedings for distribution, the same was applied on several liens that had attached to the premises to a considerable extent, “ and a balance of several hundred dollars, remaining after such distribution, was duly paid to and excepted by the plaintiffs herein, who 'well knew and understood that such proceedings and payment deprived them of all right, title, and interest in or to the premises described in the complaint, for which it was alleged the said award was made, and of all right or interest in or to the said award.” The trial court found that the city of Binghamton was not made a party to the foreclosure action, and, at the time the foreclosure action was brought, the Binghamton Trust Company knew of the proceedings then pending to lay out and open Henry street extension through the Patterson property. The trial court found as conclusion of law, viz.: “That the said award did not' pass to the purchaser of the premises on the said foreclosure sale; that the plaintiff is entitled to a judgment against the defendant for the amount of said award, to wit, $6,170, with interest thereon from December 1, 1891.” Exceptions were filed to the decision. Jane Patterson died after the action was brought, and the claim of Edward J. was assigned to her administrator.
    
      A. & A. W. Cummings, for app’lt; Edward K. Clerk, for resp’t.
   Hardin, P. J.

— Chapter 214 of the Laws of 1888 contains the charter of the city of Binghamton, and in the seventh title sundry sections are found relating to proceedings to open streets. Defendant, under those several sections,i instituted its proceedings to open Henry street extension. Section 4 defines to' considerable extent the duties of commissioners appointed to appraise the damages to be awarded to parties whose lands or interests therein are taken in virtue of the proceedings. In the language of that section, it is said:

“They shall ascertain and award to the respective owners of property to be taken, and to all persons or corporations interested therein such damages therefor (deducting the benefits to the adjoining lands) as in their opinions .shall be a just compensation to them respectively.”

This language, in connection with the general provisions found in the statute, seems to suggest that the acquisition is to be made of all the property rights of the owners, and that the award to be made is to be in compensation, not only for the principal ownership, but to compensate “ all persons interested therein.” At the time the award was made, the persons holding the mortgage and other liens upon the property were interested therein ; and, although not in form made parties to the proceeding by name, it is to be supposed that, the proceedings being of a public character, and the notices being required to be published prescribed by the statute, the persons having interests in the property were appraised of the proceedings; and, although they did not in form appear, it is to be presumed that it was the duty of the commissioners to ascertain and determine the extent and value of the respective interests taken or affected by the condemnation proceedings.

In section 10 it is provided that:

“ Immediately after the final determination of all proceedings in which any award shall have been made, the common council shall cause to be paid or tendered to the respective owners the amount awarded to each respectively.”

We think this language, construed in connection with the language found in section 4, which we have just quoted, indicates that all persons interested in the premises sought to be acquired are interested, and ought to be assumed to be interested, in the distribution of the award, which is intended to work a cancellation or extinguishment of the ownership or interest in the property acquired. Defendant’s common council did not comply immediately with that part of section 10 which we have just quoted, by paying to the owners of the fee, or to the persons interested in the premises by way of liens, the amount of the award. After the fund was raised by the defendant for the purpose of liquidating the award, it was not immediately paid over, as a dispute arose as to what parties were properly entitled to it. It was claimed by the plaintiff in this action, as well as by the purchaser of the premises, or his assignee, under the mortgage sale. Apparently, the section undertakes to provide for a case where a dispute arises as to the proper parties to receive the award; and in the subsequent language of section 10 it was provided that if for any reason the owner shall refuse to receive "the same, or to be incapacitated from receiving the amount, “ or the right thereto be disputed or doubtful, the common copncil may make payment of such amount to the office of the clerk of the county of Broome, as ■clerk of the supreme court.” This part of the statute seems to contemplate that where a dispute or a doubt arises, such as was existing between the parties owning or interested in the premises condemned, it should be within the province of the common council to omit paying to either one of the parties. In the case in hand there was a dispute, and it may be said to have been doubtful whether the owner of the fee or the lienors interested therein should receive, at the hands of the common council, the money that was placed under its power and supervision to compensate for the property acquired through the condemnation proceedings. The common council, finding that the right to the award was disputed or doubtful, was authorized by the section to l> make payment of such amount to the office of the clerk of the county of Broome, as clerk of the supreme court.” The mode of ascertaining the parties claiming-to own the award, or to be interested therein, is provided for in the section. It is made the duty of the clerk “ to make a report to the supreme court at its first, term, special ■ or general, held thereafter in the county, of the amount' thus deposited; * * * .and the supreme court shall have authority, and it shall be its duty at such term of the court, to order the investment of such money or the payment over on the ascertainment of the persons entitled thereto.” It is quite apparent that it was the duty of the common council, as soon as the dispute or doubt arose, to follow the provisions of the statute just referred to; and it is probable that a mandamus would have been allowed to quicken the action of the common council if it was dilatory. It seems that the statute provides for a summary mode of a distribution of the award to the parties lawfully entitled to receive the same. It seems to be the spirit of the statute that the city is not authorized to take possession of the property until complying with the provisions which have just been referred to.

Near the close of section 10 we find the following words:

“ Upon such payment or tender, or payment to the clerk being fully made, the land may be taken by the city, pursuant to the resolution of the common council, declaring their determination to make such improvement, and the said street or other improvement may then be opened, worked or used.”

. Upon complying with this provision of the statute, the defend•ant was authorized to enter into possession of the premises for which the award was allowed. We see no other provision in the charter authorizing expressly the defendant to enter upon the premises sought to be acquired by the condemnation proceedings. It does not seem to follow that because the commissioners omitted to specify in detail to whom the damages awarded by them belonged, under all the facts and circumstances relating to , the property, or because they, in terms, awarded the damages to the Pattersons owning the fee, the rights of the persons interested therein should be ignored or cut off.

In Utter v. Richmond, 112 N. Y. 610; 21 St. Rep. 818, it was said that, 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, and in the course of the opinion delivered in that case it was said :

“ No doctrine could be more clearly just than that, when land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon and incident to it.”

In the case in hand the land was mortgaged at the time of instituting the proceedings, and remained incumbered by the mortgage. It was upon record, and the defendant and all its officers are presumed to have notice thereof.

In Cassidy v. City of New York, 52 Hun, 359 ; 42 St. Rep. 933, it was said that, where an award is made to a specific person, the city is not bound to pay the award to that person, and thus leave the true owner to his action against such person. The award or fund raised,, by the city to discharge the same stood in the place of the land, and the city, when parting with the fund, would be entitled to take possession of the land. The fund remained for the purpose of satisfying the rights of the owners and lienors upon the land. “ The fund was the product of a paramount proceeding, which cut off overy right, * * * both of owners and incumbrancers, so that there could be neither sale nor foreclosure as to that; and instead there remained an equitable lien upon the proceeds, to be worked out by the court empowered to distribute.” In re City of Rochester, 136 N. Y. 90; 49 St. Rep. 86.

In Gates v. De La Mere, 142 N. Y. 313; 59 St. Rep. 1, it was said in the course of the opinion of Andrews, C. J., viz.:

“ If all the property covered by the mortgage had been taken by the city, the defendant could have made no claim on the award except upon any surplus remaining after payment of the mortgage debt. * * * In law, the final award represented the actual value of the land, no more and no less; and the land was primarily pledged as security for the mortgage, and the priority of lien was transferred from the land to the award, and could not be subordinated to a lien subsequently created by Denninger in favor of the defendant.”

It may be said in equity that the award represents that portion of the land or.the interest therein taken by the condemnation proceedings. Magee v. City of Brooklyn, 144 N. Y. 269 ; 63 St. Rep. 86. Inasmuch as it appears in the case that the common council had directed the payment of the money to the clerk of the county of Broome, as the clerk of the supreme court, and that such payment has been made, it seems reasonable that the plaintiff, if, under the circumstances- of this case, he is advised to make claim to the moneys, should be limited to the remedy prescribed in section 10 of the charter, to wit, an application to the court held in the .county of Broome for directions “ for the payment over on the ascertainment of the persons entitled thereto.”

Inasmuch as the foregoing views, if adopted, lead to a reversal of the judgment, it is not deemed necessary to discuss the numerous questions raised by the defendant as to the validity of the-condemnation proceedings instituted by it, conducted step by step until-it reached the stage where its common council authorized the payment of the money which it had received in liquidation of the assessment made to meet the damages for the taking the lands to open Henry street. Inasmuch as the conclusion has been stated as above, it is not necessary, in order to determine the-right of the plaintiff, to hold the present judgment to authoritatively pass upon the question. Inasmuch as the defendant has been active in instituting the proceedings, and conducting them, and in claiming benefits under them, it may be said under such circumstances, its assertion that the condemnation proceedines are-irregular, does not come to the court with very much grace.. However, we omit to pass conclusively upon the question as to-the validity of the proceedings at this time.

Judgment reversed, and a new trial" ordered, with costs to abide the event.

All concur.  