
    In the Matter of the Application of the City of New York, Relative to Acquiring Title, Wherever the Same Has Hot Been Heretofore Acquired, to All Such Real Estate, and to any Right, Title and Interest Therein, Not Owned by the City of New York, Which Shall Be Embraced Within the Lines of Riverside Drive and Parkway (Although not yet Named by Proper Authority) from One Hundred and Thirty-fifth Street to the Boulevard La Fayette, in the Twelfth Ward, Borough of Manhattan, in the City of New York, as Laid Out and Established by the Board of Street Opening and Improvement, in Pursuance of Chapter 665 of the Laws of 1897. In the Matter of the Application of Ella L. Dorsett, Appellant for a Peremptory Writ of Mandamus against Edward M. Grout as Comptroller of the City of New York, Respondent.
    
      Land taken to extend Riverside drive in Sew York city — award'embracing the value of the land and interest thereon to the date of the repoi-t— the landowner is entitled to interest on the entire award—when the rule that an excessive demand is ineffectual to set interest 'running does not apply.
    
    Commissioners of estimate and assessment appointed in a proceeding instituted under chapter 665 of the Laws of 1897, for the extension of Riverside drive in the city of New York, awarded a landowner §11,500 as the value of the land taken, and also the further sum of §1,508.41 as interest thereon from September 22, 1900, the date when the title vested in the city, to November 29, 1902, the date of the report, making a total of §13,008.41. April 23, 1903, after the report of the commissioners had been confirmed, the property owner filed a demand for the payment of the award.
    
      Held, that the landowner was entitled to receive §13,008.41, with interest thereon from November 29,1902, the date of the report, to the time when payment was made, and not simply §11,500, with interest thereon from September 22, 1900, the date when the title vested in the city, to the time when the report was confirmed;
    That the amount designated as interest in the award made to the property owner was not awarded to her as such, hut as a part of the damages which she had sustained, and that consequently she was entitled to interest on the entire award.
    
      Semble, that the rule that an excessive demand is ineffectual to set interest running upon the sum actually due is of doubtful application where the whole amount of money which the party is entitled to receive is liquidated and the only question relates to interest. Under such circumstances, if the comptroller deems the demand excessive, he should offer to pay the sum concededly due.
    Laughlin, J., dissented.
    
      Appeal "by the petitioner, Ella L. Dorsett, from an order of the Supreme Court, made at, the Few York Special Term and entered in the office of the clerk of the county of Few York on the 12th day of January, 1904, denying the petitioner’s motion for an order directing the comptroller of the city of Few York to pay to her additional interest claimed by the said petitioner upon an award made in her favor.
    
      James A. Peering, for the-appellant.
    
      John P. Dunn, for the respondent.
   Hatch, J.:

This controversy arises upon a difference of opinion as to the amount of interest to which the appellant was entitled on July 17, 1903. Under chapter 665 of the Laws of 1897 the city was authorized to extend Riverside drive. The commissioners of estimate and assessment completed and- signed their report Fovember 29, 1902. Under the terms of the act title to the land vested in,the city Seutember 22, 1900. The commissioners in their report awarded to the relator for the land taken the sum of $11,500 as the value of such land on the 22d day of September, 19Ó0, when title vested in the city, and the further sum of $1,508.41 interest thereon from the date of the vesting of title to the date of their report, making the total award $13,008.41. On April 23, 1903, the appellant relator filed a demand with the comptroller for the payment of this sum of $13,008.41, with interest thereon from the 29th day of Fovember, 1902, the date of the report. On July 17,1903, the comptroller had a warrant ready to pay what he considered was the amount due to the appellant, to wit, $13,272.91, which represented $11,500, with interest from September 22, 19Q0, to April 17, 1903, the date of-the confirmation of the report. The appellant claimed that upon that date the amount due was $13,498.39, a difference of $225.48., The appellant received the warrant drawn by the comptroller as a payment on account without waiving her claim for the full amount of all she claimed. She then made an application for a peremptory writ of mandamus to compel the comptroller to audit the balance of-the amount claimed by her, and from the order denying such application this appeal is taken.

The act under which this award was made provides in section 6 that upon the confirmation by the court of the report of the commissioners of estimate and assessment, the award, with interest, costs and expenses, shall become due and payable, and that the owner, in case of the failure of the comptroller of the city to pay the same within thirty days after a demand therefor, may apply to the court, and the court shall require the comptroller to pay the award, with costs and expenses, The real controversy which this case presents is as to whether the landowner was entitled to interest upon that part of the award which gave interest upon the value of the land as found in the award. If so, then the demand which was made by the landowner upon the city was a proper demand, as it would be of the amount due. As the city was authorized to take possession of the land prior to the confirmation of the award, the landowner was deprived of its use, and interest was awarded to him as compensation therefor. This was equitable, as without it the owner would be deprived of the use of the land and also of ’ the use of the money awarded as its value. When, however, the award was made, it was of a sum of money which represented the entire interest in the land. A part was for the value and a part for the value of the use> and these two items measured the sum of money which the owner on the day of the confirmation of the report became entitled to receive at the hands of the city. It seems to be not of consequence that the amount awarded was made up of the value of the land and the value of the use of the land after possession was taken by the city. The owner was entitled to both, as a measure of just compensation for what had been .taken from him. The two items, therefore, constituted the fund which she became entitled to receive, and as such fund represented her whole interest’ in the property of which she had been deprived she became entitled to the payment of interest by the. city upon the one part as much as upon the other. Interest upon the award at the prevailing rate was adopted to measure the damage which the claimant had sustained on account of the proceedings m wiviUm,. Calling it interest and placing it in a separate item did not change the-fact that it represented the value of the land to the owner at the time when it was taken and -paid for; consequently, there is no basis for any distinction between interest upon one sum and interest upon the other sum, as the owner was entitled to the whole, and being so entitled, her demand was a proper demand, with which the city should have made compliance. Such rule does not compound interest as applied to this situation. It was not awarded to her as such, but as damages for the taking. This view renders it unnecessary to consider whether the demand, if for too much, under the circumstances of this case, would have set interest running or no». There are cases cited by the learned counsel for the respondent which hold that where the demand is for too much, it is ineffectual to set interest running upon a lesser sum which ■may'-be due. ■ (Carpenter v. City of New York, 44 App. Div. 230.) Such rule, however, may be of doubtful- application to a case where the amount of the whole sum to which the owner is entitled is known, and it Is not complicated by mortgages, taxes and other liens, which, of themselves, make the specific amount due unliquidated. It may be doubtful, however, whether that rule applies where the whole amount of money which the party is entitled to receive is liquidated and known, and the only question relates to interest. Under such circumstances, when a demand is made, if the comptroller deems it to be for more than the sum due, he should offer to pay the sum concededly due, in order to protect the city from the interest charge. But however this may be, we think the two amounts in the present case constituted a single fund, which was awarded to the owner as value and damages for the taking of her land, and that, therefore, she was entitled to interest upon the whole sum, and the demand was for the sum to which she was entitled. This conclusion requires a reversal of this order. ■

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., Patterson and Ingraham, Jj., concurred.

Laughlin, J.

(dissenting):

This is an appeal from an order denying an application for a peremptory writ of mandamus to compel the comptroller of the city of New York to pay the relator a specific sum of money claimed to be due and payable as a balance of interest on an award for lands taken in eminent domain proceedings. In my opinion, the right of the relator to interest is governed by chapter 665 of the Laws of 1897, being a special act relating to River fide drive as distinguished from the general charter provisions. It is conceded that pursuant to the provisions of this special act the title to the land for which the award was made vested in the city on the 22d day of September, 1900. Section 6 of said chapter 665 of the Laws of 1897 provides, among other things, that the damages awarded by the commissioners of estimate and assessment when confirmed by the court, together with interest thereon from the date when the title to the lands vested in the city as therein provided shall become due and payable. In view of this provision the commissioners had no authority to award interest. They were merely authorized to determine the value of the land and other damages, if any, as of the date when title vested in the city and upon confirmation of their awards by the court interest upon the award from the time title vested follows as a matter of course. It appears that the commissioners acting according to the practice prescribed by the charter in other cases (See Laws of 1897, chap. 378, §§ 990,1001, as amd. by Laws of 1901, chap. 466) determined the awards as of the date when title vested in the city, but added thereto interest from such date to the time of filing their report. The comptroller in arriving at the amount payable to the relator accepted this computation of interest, but computed interest not upon the amount of the award, together with such interest added by the commissioners, but merely upon the award, exclusive of interest, from the date of the report of the commissioners to the time the order of confirmation was granted. . This, of course, produced the same results as if the computation of the commissioners had been disregarded and interest had been computed upon the award from the date when title vested in the city to the date of the confirmation of the report. The contention of the relator is that she should receive interest on the gross amount awarded, which included interest as stated, from the date of the report of the commissioners to the time the -award was paid. The views already expressed show that this claim is erroneous in so far as it would give the relator interest upon the interest' computed and awarded by the commissioners from the date of their report until it was confirmed. The interest thus erroneously claimed is included in the amount for which a peremptory writ of mandamus is demanded and, therefore, the writ was properly denied,- notwithstanding that the relator may have a valid * claim for some balance of interest, because in man-damns proceedings there must be a precise demand and for the relief to which the petitioner is entitled and the court is justified in denying the application if the petitioner has not a clear legal right to the precise relief for which he prays.

I am also of opinion that the relator’s right to interest after the confirmation of the report of the commissioners is not governed by the charter provisions and that under the well-settled rules applicable to municipal corporations interest would not run on the award until the making, of a demand therefor. The report of the commissioners was confirmed on the 17th day of April, 1903, and no demand was made until six days thereafter. I think that during this time interest did not run. The demand made on the 23d day of April, 1903, was erroneous in that it demanded the compound interest already stated and to which, I think,.the relator was not entitled Were it not for the decision of this court in Carpenter v. City of New York (44 App. Div. 230) I would be inclined to hold that interest should run from the date of this demand because the'prop^ erty owner then appeared and manifested a desire to receive- and a willingness to accept his award, and even though he computed and claimed interest on an erroneous basis I should think, the city, in-order to stop interest running upon the aw;ard was called upon to tender the amount to which he was legally entitled. However, in view of that decision, which I think is not distinguishable on principle from this and should, therefore, be followed, it would seem that, the demand was ineffectual to- set interest running and the relator, upon my view of the law, was not entitled .to any interest after the confirmation of the report. ■ ‘

On the 17th -day of July, 1903, the relator received from the comptroller the amount of the award, less the interest added by the commissioners, and interest thereon from thé time the title vested until the date of the confirmation of the report. This was the full amount to which he was entitled. The denial of the writ may also be sustained, therefore, upon the ground that no part of the claim is meritorious.

I, therefore, vote for affirmance.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  