
    Robert Irwin, Pl’ff, v. The Mayor, etc., of New York, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890.)
    
    Eminent domain—Award—Interest—Laws 1888, chap. 191.
    In an action to recover an award made for lands taken in pursuance of Laws 1888, chap. 191, interest is recoverable only from the date of demand upon the comptroller for payment of the same.
    Submission of controversy upon an agreed state of facts.
    
      Townsend & Mahon, for app’lt; C. N. Harris, for resp’t.
   Yan Brunt, P. J.

On the 30th of July, 1889,[the report of the ■commissioners of estimate, in the matter of acquiring lands for school purposes, was duly confirmed. In said report the commissioners awarded the sum of $59,250 to the plaintiff as damages for the taking certain lands owned by him which were taken for school purposes. On the 26th of August, 1889, the plaintiff made due demand for the payment of the amount of the award made to him, with interest. On the 9th of October, 1889, the defendants tendered to the plaintiff the sum of $59,250, the amount awarded by the report of the commissioners, which was refused by him on the ground that interest on said sum from the date of confirmation of said report was by law due and owing to him.

On the 4th of December, 1889, the plaintiff served another notice demanding payment and served the same upon the comptroller. More than thirty days having elapsed since the service of such notice upon the comptroller and no part of such claim or interest having been paid by defendants, upon this agreed state of1 facts the plaintiff asks judgment; the sole difference between tbe¡ plaintiff and defendant being that the plaintiff claims that ho is' entitled to interest on the award made to him from the date of the} confirmation thereof, whereas the defendant insists that he cannotj claim interest, only from and after four months from said date.

By chap. 191 of the Laws of 1888, § 3, being the act^under! which these proceedings for condemnation were had, it is provided' that on the final confirmation of the report of the commissioners! “ the mayor, aldermen and commonalty of the city of New York, shall become and be seized in fee simple absolute of the lands in-* eluded in said report, the same to be converted, appropriated and used to and for the aforesaid purposes, accordingly; and thereupon the said mayor, aldermen and commonalty, by the board of education of said city, shall immediately take possession of the same without any suit or proceedings at law for that purpose.” And all leases and other contracts then cease, and § 4 enacts that “ The comptroller of the city of Mew York upon the confirmation of the said report shall pay to the parties entitled thereto the respective sum or sums so estimated and reported in their favor respectively, with lawful interest from the date of such confirmation, and in default thereof, within four calendar months after the date of such confirmation, said persons or parties respectively, his, her or their respective heirs, executors, administrators, successors or assigns, may sue for and recover the same with lawful interest from and after demand thereof and the cost of suit.”

The provisions of this act in respect to interest are manifestly contradictory. By the first portion of the section the comptroller is required to pay the award with interest from the date of the confirmation of the report, while the concluding part provides that in case of a failure to pay within four months after the date of confirmation a suit may be brought, and the recovery is limited to the amount of the award with lawful interest from and after a demand has been made for payment.

By the terms of this act it was undoubtedly the duty of the comptroller, upon the confirmation of the report, to pay to the parties entitled thereto the sums awarded to them, with lawful interest from the date of such confirmation. But in the case of the bringing of a suit in order to collect the amount of the award a different rule in regard to the question of interest is fixed by the wording of the statute, which provides that if the award is not paid within four calendar months after the date of confirmation a suit may be brought to recover the same, with lawful interest from and after the demand thereof; hence, if the demand had been made for the payment of this award immediately upon its confirmation, the interest would commence to run from that time, in case a suit had been brought

If that demand was delayed for any period or length of time, then it evidently was the intention of the legislature that in case of the bringing of a suit, interest should only be recovered from the time of the making of the demand. In other words, the result of the legislation seems to be that if the defendants chose to wait the four calendar months after the date of confirmation, and only to pay at the end of an action, they would be required to pay interest only after demand had been made upon them, whereas, in the case of a voluntary payment, they would be compelled to pay interest from the date of confirmation.

We are unable to reconcile these seemingly inconsistent provisions, but it seems to us that it was intended that the city should not be put in default and chargeable with interest until a demand was made upon them for the payment of the award. This is the clear language of the statute and it is manifest that it was not intended that the owners of these awards should be allowed to lend their money to the city at the legal rates of interest, which they would virtually be doing by failing to demand payment of the same if the plaintiff’s construction of the acts in question should prevail. After demand had been made and refused, then the city would be in default and the ordinary rules with regard to the running of interest would apply.

It seems to us that this is the clear intention of the legislature and that the interest upon the award commenced to run from the time the demand was made upon the comptroller for the payment of the same.

Such demand having been made on the 26th of August, 1889, the plaintiff seems to be entitled to recover interest from that time.

Judgment ordered accordingly.

Daniels and Brady, JJ;, concur.  