
    Amos R. Eno, Resp’t, v. The Metropolitan Elevated Railway Co., App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed June 20, 1888.)
    
    1. Railroad—Proceedings to acquire land—Deposit of amount
    awarded—When sufficient—Interest.
    The defendant took proceedings to acquire real estate in two parcels belonging to the plaimiff. The commissioners assessed the damages, and against the objection of plaintiff, awarded them in one instance ‘‘to unknown owners,” and in the other “ to the plaintiff or parties interested.'’ The order entered confirming the award provided in conformity wiili 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 damages to the plaintiff. Held, that the order of confirmation stood in other respects and spoke as of its date and required that a deposit should be made in such a manner that the plaintiff would be able to obtain it by demand; that the amount deposited should combine the amount of the award and interest upon it from the date of confirmation.
    2. Same—When owner of land taken has right of action for amount OF AWARD AND INTEREST.
    The defendant did not make any new deposit. The plaintiff filed the modified orders, the defendant not having done so. Held, that the plaintiff had an action for the amount of the award and interest from the date of the order of confirmation.
    Appeal by defendant from a judgment entered upon a verdict directed by the court upon a trial before Mr. Justice O’Gorman and, a jury.
    In 1877 the defendant took in the supreme court condemnation proceedings to acquire property in the bed of South Fifth avenue belonging to the plaintiff. Commissioners were appointed; and on May 31st, 1879, they made their report. For one parcel they awarded $526.50 to unknown owners; and for another $4,562.50 to the plaintiff as owner, or to persons interested. On December 16, 1879, the general term made an order confirming the report, except that upon the motion of the defendant, it provided that the amounts above mentioned should be deposited in the Shoe and Leather Bank. From this order both parties appealed ;the plaintiff claiming among other things, that the award should have been made to him. The order of the general term upon the appeals was not made until June 8, 1886. It modified the report of the commissioners so as to require that the sums above mentioned should be awarded to the plaintiff as owner. The order contained this provision:
    “And it is further ordered that the sum of $526.50, and $4,562.50, heretofore deposited by the petitioner in the Shoe and Leather Bank, in pursuance of the said order of the court herein entered on the 19th day of December, 1879, together with any accumulation of interest thereon, if any, growing out of such deposit, be paid by the said Shoe and Leather Bank to the said Amos R. Eno, or to Man & Parsons, his attorneys.”
    That provision was not inserted at the request of the plaintiff. What was to be the effect of the payment to the plaintiff of the sums mentioned, by the Shoe and Leather Bank, the order did not prescribe. There was no evidence in the proceedings that any such deposit had been made, or, if made, that it carried interest. The order of December 16, 1879, permitted the defendant to enter upon immediate possession of the property. It did accordingly enter into such possession. The defendant doing nothing towards paying the plaintiff the amount established by the general term to be due to him, he procured a certified copy of the order of December 16, 1879, and of the order of June 8, 1886, to be recorded in the books kept in the office of the county clerk in which to record orders in condemnation proceedings, demanded payment of the awards and interest, and then brought this suit. Section 18 of the general railroad act (Laws of 1850, chapter 140, as amended by Laws of 1876, chapter 198), provides that on the payment of the sums awarded, “with interest from the date” of the order of confirmation, the company shall be entitled to enter upon possession, etc. It also provides that if the company neglects, for the period of ten days, to have the order recorded, and to pay, any party may cause a certified copy to be recorded; “ and thereupon the moneys therein directed to be paid, with interest thereon, from the date of said order, shall be a debt against the company, and the same shall be a lien upon said real estate, and may be enforced and collected by an action at law or in equity in the supreme court with costs.”
    Upon the trial the defendant proved that the amounts mentioned had been actually deposited in the Shoe and Leather Bank, and it moved for a dismissal of the complaint upon the ground that the money had been so deposited, etc. The plaintiff moved the court to direct a verdict for the two amounts with interest from December 16, 1879. Judge O’gorman directed a verdict accordingly, holding that as the plaintiff had been deprived of his property, he was entitled to the compensation awarded for it, and that he would not receive this compensation if he did not also receive interest. The defendant excepted and appeals. The substantial question concerned was whether the plaintiff should have interest upon the award. It amounted to $2,498.61.
    
      Edward S. Rapallo, for app’lt; John E. Parsons, for resp’t.
   Sedgwick, 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 the 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 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 damage 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 combine the amount of the award and interest upon it from the date of confirmation. The defendant did not make any new deposit. The defendant’s not filing the orders 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 ©f 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., concur.  