
    AMOS R. ENO, Respondent v. THE METROPOLITAN ELEVATED RAILWAY CO., Appellant.
    
      Award for lands taken, recovery of with interest from party for zvhose benefit the land was taken, although such party had deposited the money pursuant to an order of the court.
    
    Where in proceedings instituted by a railroad company (the defendant in this action, formerly known by the name of the G.lbert Elevated Railroad Company) for the condemnation and acquisition of lands, under the general railroad act (Laws of 1850, chap. 140) as amended by Laws of 1876, Chap. 198, the commissioners awarded the damages for one parcel to unknown owner, and for another parcel to A. R. E. (the plaintiff herein), as owner or person interested, against the objection of A. R. E., who insisted that the awards should be made to him „ specifically, and so reported; and thereafter the supreme court at general term after hearing counsel for A. R. E. in opposition by its order bearing date December 16,1879, confirmed the report of the commissioners, and ordered that the company deposit the amount of the awards in the Shoe and Leather Bank, and that on making such deposit it should be entitled to enter upon the possession of, and use for the purposes of its incorporation, during its corporate existence, the lands in respect whereof the awards were made; the company had theretofore entered into possession of the premises; and thereafter it deposited in the Shoe and Leather Bank the amount of the awards to an account known and designated as unknown parties to be hereafter designated by the court “in the matter of the Gilbert Elevated Railroad Company” and thereafter the general term of the supreme court on appeal made an order bearing date June 8, 1886, whereby it modified the report of the commissioners, so that said damages so awarded as aforesaid should be awarded to be paid to A. R. E., and confirmed the report as so modified ; and further ordered that the sums of money theretofore deposited in respect of such awards in the Shoe and Leather Bank pursuant to said order of December 16, 1879, together with any accumulation of interest thereon, if any, growing out of such deposit, be paid by said bank to such A. R. E., and thereafter the company making no new deposit under the order of June 8, 1886, and doing nothing towards paying the awards to A. R. E. and not procuring the two general term orders to be recorded in the office of the county clerk in the books there kept for the records of orders in condemnation proceedings, A. R. E. procured such orders to be so recorded, and then demanded of the company payment of the amounts so awarded with interest thereon from December 16, 1879, which being refused, A. R. E. brought action therefor against the company.
    
      Held, That plaintiff was entitled to recover the said sums awarded with interest thereon from December 16, 1879.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 20, 1888.
    This action is brought to recover the amounts of two awards made by commissioners appointed in proceedings for the condemnation and acquisition of land instituted by defendant with interest from December 16, 1879.
    The facts sufficiently appear in the opinions and head notes.
    The cause was tried before O’Gorman, J., and a jury. At the conclusion of the evidence counsel for defendant moved that the complaint be dismissed, or, that a verdict be directed for the defendant upon the following grounds: First. That the only statutory action which is described in the act of 1850, and its amendments, is an action to recover an award with interest, upon the ground that the order confirming the award has been entered; and more especially that the money directed by the award has not been paid. That this is not such an action as is prescribed by the statute, because the money has been paid, and the order has been substantially regarded and its provisions complied with and acquiesced in. Second. That no facts have been shown sufficient to constitute a cause of action in the plaintiff, or to enable plaintiff to recover any substantial amount. Third. That there is no cause of action at law for the recovery of such an award as this, with interest, outside of the statutory provision contained in that act and its amendments. Counsel for plaintiff moved the court to direct a verdict in favor of the plaintiff for the total amount of $5,089, with interest from December 16, 1879, to the date of trial, said interest amounting to $2,493.61, from December 16, 1879, to date. The trial judge granted the motion of plaintiff’s counsel, and delivered the following opinion:
    
      “ It is somewhat difficult for the court to express any conclusion on a question of this kind on the first impression. But I have to direct the jury one way or the other, and it is proper that I should say why I shall do, what I intend to do.
    “ All this proceeding depends upon the constitutional doctrine that private property shall not be taken for public use without compensation.
    “ It was at one time thought that that provision went far enough to prevent a public corporation from taking private property, that is, actually entering upon the possession and use of private property, without first paying the compensation. The legislature, however, in aid of these great public institutions, and in the expectation of their carrying out the beneficent purposes for which alone the state gave them authority to do these acts, provided that they might take possession without actual payment on adopting certain legal courses wrhich protected the property owner and assured that he should at some time be paid for his property that was taken. Now, the intention always was that the corporation should compensate the property owner. The legislature in its establishment of a special course of proceeding in this matter provided that while certain facts were still in doubt as to the ownership of the property, the award should be made by the commissioners specifying the amount to be paid and until the person who was entitled to that amount was finally ascertained, the amount to be paid should be put in the safe keeping of a bank to be designated by the court.
    “ In this case that step was taken under the impression, which subsequently turned out to be unfounded, that there was some doubt as to the title of the plaintiff in this case to the property taken. The court directed that the money due to the rightful owner should be put in the safe keeping of a bank until it was ascertained who was the rightful owner. Subsequently, upon appeal, the court decided that it had been mistaken before, in supposing that there was any doubt as to the legal ownership, and they accommodated the order that they then made to the form and substance of what ought to have been the order when first made, and they authorized the bank to pay the money with interest if any into the hands of the plaintiff in this case.
    “And now this action is brought by the owner, not against the Shoe and Leather Bank, under any statutory proceeding, but against the company, on the ground, I suppose, that they have taken the plaintiff’s property, and have not given him any compensation for it to the extent that he considered himself entitled to compensation.
    “Then the question settles itself down to this: What party should lose the interest that by right, and according to ordinary custom, should have accrued, and should have been payable to the person who was entitled to receive that money, when the commissioners made the award that the money was due to the rightful owner ? Should it be lost to the rightful owner ? Would it be carrying out the great constitutional principle of giving him compensation for his property if he did not also receive the interest which naturally would have accrued on the amount which was decided to have been due to him at the time the award was made ? It seems to me that justice and equity, if it can be administered in this proceeding, require that he should have interest. I do not see anything to prevent the application of the ordinary principle that interest accrues on the amount held to be due. I do not see any reason why it should not be applied in this case. And if these views are correct, and I believe now that they are, I will direct a verdict according to the request of the plaintiff’s counsel.”
    From, the judgment entered upon the verdict rendered pursuant to the direction of the court, the defendant appeals.
    
      Davies & Rapadlo, attorneys, and Edward 8. Rapallo, of counsel, for appellant, argued:—
    I. The trial court erred in directing a judgment in favor of plaintiff, for the amount of the awards with interest from the date of the general term order of confirmation ; and the trial court erred in refusing to dismiss the complaint upon the merits. The plaintiff appears to claim that the order of confirmation of the Commissioners’ report, made December 16, 1879, which order directed the deposit to be made in the Shoe and Leather Bank, was reversed upon an appeal to the general term, and that the defendant can derive no protection from having relied upon that order, and from having obeyed its directions. This order however does not reverse the order which directed the defendant to deposit the money in the Shoe and Leather Bank, nor does this order direct the defendants to pay to Amos R. Eno the money or the amount of the awards, but, on the contrary, the order recognizes the deposit as having been made ; it modifies the reports of the Commissioners, so as to make the award to- Amos R. Eno, and then directs the Shoe and Leather Bank to pay the money on deposit with that bank to Amos R. Eno. The defendant in this case, the petitioner in the former proceedings, was entitled, therefore, to pay the money as directed by the original order; to enter upon the property; the rights of all parties to the proceedings were cut off, and after once paying the award the defendant had no further concern with the money, nor could it demand the money again from the Shoe and Leather Bank, as the same was deposited there to await the further order of the court. The statute authorizes the maintenance of no such action as the one at bar, but, on the contrary, expressly designates the grounds upon which such an action can be maintained, and the principal and most important ground specified by the statute does not exist in this instance, to wit, the non-payment or failure to make deposit of the money, as directed by the order.
    II. The payment of money into court, or the deposit of money in accordance with an order, in these proceedings, is in effect a substitution of the money for the land, and the condemning corporation is then justified in entering upon possession of the premises. The learned justice, at trial term, appears to doubt whether the acts of the legislature would be constitutional if they should be construed as authorizing the payment of compensation, not to the true owner, but by deposit in bank, especially if the true owner should suffer a loss of interest thereby. We contend that the constitution is complied with, by an act of the legislature which directs the deposit of the money, for the owner. Mills on Eminent Domain, § 76, p. 100; § 147, p. 181: “If the owner refuses to take the compensation awarded, the court may order the money to be paid into court for his use, and thereupon the condemning party is justified in entering on the premises. After such deposit the title passes and no refusal on the part of the owner or protest will constitute the condemning party a trespasser.” Evans v. Harfner, 29 Miss. 141,148, 149; Montgomery & W. P. R. R. Co. v. Walton, 14 Ala. 207-208; Hueston v. Eaton & Hamilton R. R. Co., 4 Ohio St. 685, 688, 689; In re N. Y. C. & H. R. R. R. Co. to acquire land, 60 N. Y. 116, 117, 120 ; Beeker v. Boone, 61 Ib. 317, 322.
    HI. The statute as to recording the order of confirmation has been complied with, in all essential particulars, and defendant is entitled to the full protection of the proceedings. The provisions of the statute (2 R. S., p. 1552, § 18) that a certified copy of the order so to be made as aforesaid shall be recorded at full length in the clerk’s office of the county in which the land described in it is situated.....If the company neglect to have such order recorded, and to make payment or deposit as herein provided for the period of ten days after the date of such order,” etc., are directory and not mandatory. Sedgwick on Statutory and Constitutional Law, p. 396; Pease v. Morrice, 2 A. & E. 94; Empire City Bank, &c., v. U. S. Fire Ins. Co., 18 N. Y. 199, 220; People ex rel. Westcott v. Holley, 12 Wend. 481-3; In re Broadway Widening, 63 Barb. 572, 593; Wiggin v. Mayor, 9 Paige Ch. 16-24; Striker v. Kelly, 7 Hill, 9, 24; People v. Cook, 8 N. Y. 67-93; Gale v. Mead, 2 Den. 160-1; Thomas v. Clapp, 20 Barb. 165; Wetherill v. Mosher, 9 Hun, 412, 415; Doughty v. Hope, 3 Den. 249-252; People v. Carpenter, 14 N. Y. 86, 93; Hall v. Fettle, 6 Hill, 38, 42 ; Marchant v. Saergworthy, 6 Hill, 646; People v. Allen, 6 Wend. 486-8.
    
      John E. Parsons, attorney, and of the counsel for respondent, argued:—
    I. The condemnation proceedings determined that the plaintiff was the owner of the property and was entitled to the awards. It fixed the amount. The company having taken possession as of December 16,1879, the plaintiff was entitled to be paid as of that time. If the payment were deferred, interest necessarily ran upon the awards. It was no answer for the defendant to say that under the authority of the order of December 16, 1879, it paid the amount to the Shoe and Leather Bank. The decision of the general term upon the appeal was that that order was erroneous; that it should have ordered the payment to be made to the plaintiff. The order in the respect in question was reversed. From that order the defendant can obtain no advantage. Kessel v. Zeiser, 102 N. Y. 114; Blackshire v. Atch., T. & S. F. R. R. Co., 13 Kans. 514; Dater v. Troy, &c., R. R. Co., 2 Hill, 629.
    II. The general railroad act, under which the condemnation proceedings were taken,■ provides in' so many words that to entitle a railroad company to enter upon possession the award must be paid “ with interest from the date ” of confirmation. That act also expressly provides that the award, “ with interest thereon from the date of ” the order of confirmation, shall he a debt, &c. The general railroad act makes it a condition of an appeal by a property owner that he shall stipulate not to disturb the possession of the railroad company. By the act the entry into possession of the defendant took place legally as of December 16, 1879. The defendant entered upon actual possession previously. By the act the plaintiff could not prevent that possession. The provision of the order of December 16, 1879, directing the awards to be deposited having been reversed, the defendant became subject to the provisions of the Act. That made him liable to pay the awards with interest. That it shall do so is, therefore, in direct accord with the act. That it is in accordance with right and justice cannot be gainsaid. The defendant has had the enjoyment of the plaintiff’s property. The deposit of the awards in the Shoe and Leather Bank was of no benefit to the plaintiff. The provision for that deposit having been reversed, it ceased to afford protection to the plaintiff.
    III. The clause in the general term order of June 8, 1886, directing the Shoe and Leather Bank to pay the deposit to the plaintiff did not affect his right to the amount of the awards with interest. 1. The order did not assume to determine whether the plaintiff was or was not entitled to interest. It did not assume to limit or to establish the remedies to which the plaintiff was entitled. That is prescribed by statute. 2. The plaintiff might probably have received from the Shoe and Leather Bank the amount of the deposit, assuming that the bank would have been willing to pay, and have credited it on the debt. It would have left due to him the interest for which the statute made the company liable. The plaintiff was, however, under no obligation to collect that deposit. As matter of fact the plaintiff did offer to receive it under a stipulation that it should not affect his claim for interest. 3. The order was not pleaded in bar. Brazill v. Isham, 12 N. Y. 9. If it had been it could not operate to bar the plaintiff’s action, (a) It does not in terms pass upon the question of interest. That question could not be litigated in that proceeding. Stowell v. Chamberlain, 60 N. Y. 272, holds that no order or judgment is a bar unless the relief claimed to be barred could equally well have been awarded in the prior proceeding. (5) The general railroad act gave the general term no power on appeal either to require the Shoe and Leather Bank to pay interest or to dispose of the question of interest one way or the other. It is only in the single event of the award being diminished upon a re-appraisement that the court is empowered to render judgment for a return by the landholder of the difference. A failure on the part of the company to pay an award is enforceable only by action.
   By the Court.—Sedgwick, Ch. J.

The defendant took proceedings to acquire real estate in two parcels belonging to the plaintiff. The commissioners assessed the damages, and against the objection of plaintiff, awarded them in the one instance to unknown owners and in the other to the plaintiff or parties interested in the land. The order entered confirming the award provided, in conformity with the statute, that the amount of the award should be deposited and the deposit was made. The plaintiff appealed, and on the appeal the order was modified so that it should award the damages to the plaintiff. As the order of confirmation stood in other respects, being only modified in the manner described, it spoke as of its first date and contained a requirement or an implication that a deposit should be made in such a manner that the plaintiff would be able to obtain it by demand, and also that the amount deposited should comprise the amount of the award and interest upon it, from the date of confirmation. The defendants did not make any new deposit. The defendants not filing the orders, etc., as modified by the order on appeal, in the way required by statute, but the plaintiff filing them, the plaintiff in my opinion had an action for the amount of the award and interest from the date of the order of confirmation.

I think the court was right in directing a verdict for plaintiff.

Judgment affirmed with costs.

Freedman and Truax, JJ., concurred.  