
    The People of the State of New York ex rel. Samuel Hutchinson, Appellant, v. William Sohmer, as Comptroller of the State of New York, Respondent.
    Third Department,
    November 12, 1913.
    Board of Claims—eminent domain — appropriation of lands for barge canal — validity of judgment certified by clerk of Court of Claims, after creation of Board of Claims —interest on award.
    Where a claim for lands appropriated by the State for barge canal purposes was duly presented and heard by the Court of Claims and allowed on July 39, 1911, on which date the statute restoring the Board of Claims and abolishing the Court of Claims went into effect, and on November 39, 1911, the claimant received from the clerk of the former Court of Claims a certified copy of the judgment of said court, dated November 14, 1911, signed and certified by said clerk, and thereafter payment of said claim, with interest for the twenty days .from November fourteenth to December fourth, was refused because the judgment was irregular in that it was certified by the clerk of the former Court of Claims, and the Comptroller obtained a certification of said judgment by the clerk of the Board of Claims, and on March 9,1913, issued his warrant for the amount, which was received by the claimant on March twelfth, including interest to December 4,1911, the claimant is entitled to interest on the judgment from December 4,1911, to March 9,1913, which should be computed, not upon the judgment, but upon the award, to which the costs should be added.
    
      Appeal by the relator, Samuel Hutchinson, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 2d day of July, 1912, denying relator’s application for a peremptory writ of mandamus directing the respondent to pay relator’s claim for interest upon an award for land appropriated by the State for barge canal purposes.
    
      William F. Lynn, for the appellant.
    
      Thomas Carmody, Attorney-General [James A. Parsons of counsel], for the respondent.
   Lyon, J.:

August 10, 1910, lands of the relator situate in the county of Monroe were appropriated by the State for barge canal purposes. A claim on account thereof was duly presented, and in May, 1911, was heard by the Court of Claims. July 29, 1911, chapter 856 of the Laws of 1911 (amdg. Code Civ. Proc. § 263 et seq.), restoring the Board of Claims and in effect abolishing the Court of Claims, went into effect. July 31, 1911, the claimant received notice from Charles E. Palmer, the clerk of the former Court of Claims, that an award had been made upon said claim. The new Board of Claims, consisting of the appointed commissioners, was organized early in October, 1911, by the appointment and qualification of three commissioners, and on October twentieth the Board appointed John V. Sheridan its clerk.

November 25, 1911, the relator- received from said Palmer a certified copy of the judgment of the Court of Claims, dated November 14, 1911, noted as decided July 29, 1911, signed Charles E. Palmer, clerk, and certified by him as clerk of the Court of Claims, awarding the relator $9,000, with interest from August 10, 1910, to November 14, 1911, and $40 costs, amounting in all to $9,121.

December 15, 1911, the relator filed with the respondent Comptroller said certified copy of judgment and the certificate of the Attorney-General that no appeal would be taken from the judgment, and December 19,1911, the relator received from the Attorney-Genéral a notice that the title, abstracts of which had been furnished by relator, was approved and in the hands of the Comptroller. January 17, 1912, relator received from the Comptroller a blank attorney’s release and an undated blank receipt acknowledging receipt from the Comptroller of his warrant on the Treasurer of the State for the sum of $9,753.40, being the said amount of the award, with $32.40 interest for the twenty days from November fourteenth to December fourth, “in payment of a determination of the Board of Claims made at a session of said Board held on the 14th day of November, 1911.” Said blanks were accompanied by a letter from the Comptroller, stating “ on the receipt of these papers in proper form, prompt payment of the claims will be made.” On the day of the receipt of said blanks the relator, without having made any computation of interest, duly executed said receipt and release and returned the same with waiver of attorney’s lien for services to the Comptroller,

January 21, 1912, relator received from the Comptroller a letter saying that he could not pay the judgment until he had received the opinion of the Attorney-General relative to the jurisdiction of the Court of Claims and the Board of Claims. Thereafter the Attorney-General informed the relator that the judgment being certified by the clerk of the Court of Claims, and being a judgment instead of a determination, was irregular and could not be recognized and paid. February 27, 1912, the Court of Appeals in the case of People ex rel. Swift v. Luce (204 N. Y. 478) affirmed, by a closely divided court, the lower courts in holding that chapter 856 of the Laws of 1911, abolishing the Court of Claims and re-establishing the Board of Claims, was constitutional. The Attorney-General thereupon advised the Comptroller that the former clerk of the Court of Claims had no power to certify a judgment or determination after the appointment of his successor as clerk of the Board of Claims. March 7, 1912, the State Comptroller obtained a certification of the said judgment by the clerk of the Board of Claims and on March ninth, inserting that date in said undated receipt, issued his warrant for the said sum of $9,753.40, which was received by the claimant March twelfth, and which, as has been stated, included interest for twenty days after November fourteenth, the date of the entry of judgment, or to December fourth. The judgment amounted March 9, 1912, with interest thereon from the date thereof, to $9,907'. 30, and it is to compel the payment by the Comptroller of the balance of $153.90, being the amount of the interest on the judgment from December 4,1911, to March 9,1912, that this proceeding has been instituted. The Special Term denied the application for a writ of mandamus, and it is from the order of denial that this appeal has been taken.

The contention of respondent that relator is not entitled to interest is based mainly upon the alleged failure of relator to file a duly certified copy of the judgment with the Comptroller prior to March Y, 1912.

Respondent contends that Clerk Palmer was legislated out of office July twenty-ninth, and that, therefore, the certificate made by him and attached to the judgment or determination was invalid, and hence that the Comptroller was not authorized to pay the judgment. Section 269 of the Code of Civil Procedure provides (the words “ Court of Claims ” being construed “Board of Claims ” as provided by said act of 1911) that no judgment or determination shall be paid until there shall be filed with the Comptroller a copy thereof duly certified by the clerk of the Court of Claims, and that the determination of the court shall be by a judgment or determination to be entered in a book to be kept by the clerk for that purpose and signed and certified by him. But, if Palmer had no authority to certify the judgment or determination, he had no authority to enter, sign and certify it as was required by law in order to constitute the decision a judgment or determination. Hence, no judgment had been entered and none existed until the certification by Clerk Sheridan, which act the State recognized and accepted as creating a valid determination and certification and thereupon paid the amount specified in the warrant which it had no authority to do prior to that time.

Relator was, therefore, entitled to interest upon the award from the time of the appropriation of the property, August 10, 1910, to the time of issuing the warrant therefor, March 9, 1912, pursuant to section 269 of the Code of Civil Procedure, providing that interest shall be allowed on each judgment from the date thereof until the twentieth day after the Comptroller is authorized to issue his warrant for the payment thereof, or until payment, if payment be made sooner. If, perchance, Palmer had authority to sign the judgment or determination, he had authority the same day to certify it. Whether Palmer was the clerk of the Board of Claims from July twenty-ninth until the appointment of Sheridan October twentieth may not be very material, but, in view of the statement made in one of the briefs, it may be observed that the judges of the Court of Claims, having become commissioners of the Board of Claims July twenty-ninth, constituted the Board of Claims until the organization of the new board in October, and during that period had all the authority later possessed by the new board, included in which was the power to appoint a clerk.

The case of People ex rel. Evers v. Glynn (126 App. Div. 519), a decision of this court, is cited by respondent as authority for the contention that relator is entitled to interest for not exceeding twenty days after the date of entry of judgment, November fourteenth. But, in order that this decision shall be applicable, the judgment or determination so entered by Clerk Palmer must have been legally entered, which respondent claims was not the fact. Moreover, the facts in that case were very different from those in the case at bar. In that case a valid judgment had been entered from which claimant had appealed. The Comptroller was prepared and willing to meet the obligation from the time of the entry of the judgment, but the relator delayed presenting the necessary vouchers and other papers which would authorize the Comptroller to make the payment until after the determination of the appeal. The relator had not been prejudiced by the failure of the clerk of the court to furnish her a duly certified copy of the judgment, as section 269 of the Code of Civil Procedure required him to do within ten days after the entry thereof.

As the court remarked, all the delays were chargeable to the relator. In the case at bar the relator has been guilty of no delay and has acted in good faith. The certified copy of the judgment which he furnished the Comptroller was the identical paper which had been served upon him by a State official as in compliance with a statutory requirement, and he promptly furnished all other papers required to be furnished by him, all of which were retained by the Comptroller.

We think the relator is entitled to be paid the balance of the interest from the time of the appropriation of his property by the State to the time of issuing the warrant, but interest should be computed, not upon the judgment, but upon the award of $9,000 from August 10, 1910, to March 9, 1912, to which should be added the costs of $40, and from which should be deducted the amount paid to the relator by the State, leaving a balance due the relator of $140.12, for the payment of which the relator is entitled to an order directing the issuance of a writ of mandamus requiring the Comptroller to issue his warrant therefor.

All concurred.

Final order reversed, with costs, and mandamus directed as per opinion, with ten dollars costs and disbursements.  