
    The Board of Supervisors of Erie County, Resp’t, v. The City of Buffalo, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    
      A. Eminent domain—Action to recover award—Waiver.
    Ia an action to recover the amount of an award with interest made in proceedings to acquire title to real estate to be used fory street, the defense that, by paying the assessment for grading and paving made on his abutting land, the plaintiff had waived its right to have payment of the award, is not tenable.
    .2. Same—Interest.
    In such case, where the time the award is payable is fixed by statute, interest on the am mnt of the award is to be computed from such time, unless the owner be still in possession of the land.
    Appeal by the defendant from a judgment entered on the findings and decision of the court at special term (Erie, January, 1891).
    
      Philip A. Laing, for app’it; John Ounneen, for resp’t.
   Dwight, P. J.

The action was to recover the amount of an award, with interest, made to the plaintiff in proceedings instituted by the defendant to acquire title to real estate belonging to the county of Erie, situated in the city of Buffalo. The city required the premises for the extension of one of its most important .streets, and it instituted the necessary proceedings in the superior ■court of Buffalo to acquire the title by condemnation. In those proceedings the award in question was duly made by commissioners, and was duly confirmed by the court on the 2d day of -October, 1876. Immediately thereupon the city took possession ■of the premises, removed whatever structures were upon them, graded and paved the surface for the purposes of a highway, and has ever since been in exclusive possession and control of the .same as a public street of the city of Buffalo.

The expenses of the grading and paving were assessed wholly iipon the residue of the plaintiff’s land, from which the portion ■condemned had been taken, that being the only land then abutting upon the extension, and the assessment (of $2,700) was paid by the plaintiff.

In May, 1885, the defendant moved, in the superior court, to ■set aside the award in question on the ground of irregularities in the proceedings leading up to it. This application was met by the plaintiff with an offer to waive all such irregularities, and was denied by the court. In February, 1886, the defendant gave notice of an appeal from the last-mentioned order, but in the following April withdrew that notice and the appeal was dismissed.

On July 27, 1887, the plaintiff gave notice of its claim to the defendant, and demanded payment of the award and interest, or á surrender of the possession of the premises, and on the 10th day of October of the same year this action was brought; no payment or offer of payment having, in the meantime, been made t0_ the plaintiff, and no assessment of benefits having been made with which to pay for the premises appropriated.

The cases of Sage v. The City of Brooklyn, 89 N. Y., 189; McCormack v. The Same, 108 id., 49; 12 St. Rep., 817, and Donnelly v. The Same, 121 N. Y., 9; 30 St. Rep., 501, furnish undoubted authority for resorting to a common law action for the recovery of the award; also for the proposition that the confirmation of the award was in the nature of a judgment of the superior court of Buffalo, and that an action for the recovery of the award so confirmed may be brought at any time within twenty years from the entry of the order of confirmation. We find nothing in this case which takes it out of the doctrine of the cases cited. The proposition that, by paying the assessment for grading and pavin*', the plaintiff waived its right to have payment of the award is not at all tenable. It may perhaps have been entitled to have the assessment offset against the award, but there is no principle upon which its omission to claim such a disposition of the matter can he construed as a waiver or relinquishment of its claims to the award of $20,000. The time within which the award was payable had not yet expired, and it may well have been supposed that the assessment of the benefits would be made, and a final adjustment of the whole matter be reached within that time.

There seems to us to be no evidence that would have warranted the finding that the plaintiff had dedicated the premises to the use of the public; nor that it was estopped to claim that the award was unpaid and due. Mere forbearance . to press a claim, does not constitute loches, especially on the part of a board of public officers, the composition of -which may be changed every year; and there is no period at which the claim of the plaintiff would outlaw except that prescribed by the statute of limitations.

The only real question here, as it seems to us, under the authorities above cited, relates to the time from which interest is to be computed on the amount of the award. The findings and judgment in this case give interest from a date one year subsequent to the order of confirmation. In the case of Donnelly v. Brooklyn, supra, it was -held that interest did not run until a formal demand of payment or other proceeding on the part of the land owner to fix the period within which damages were payable. But the two cases are distinguished in two very material features. In the Brooklyn case the statute did not in any way definitely fix the time when the award was payable. In this case the statute positively prescribes that the award shall be paid within one year after its' confirmation by the court. Laws> of 1870, Chap. 519, title 8, § 15. Moreover, in the case of Donnelly, it appeared that the claimant had remained all the time, down to the commencement of his action, in the occupation and use of the condemned premises, and that no steps had been taken by the city to obtain the possession; and the case of Hamersley v. The Mayor, 56 N. Y., 533, is cited, where Andrews, J., said, “It would require very clear evidence of legislative intent to warrant such a construction of the statute as would give the owner both the use of the land and the interest on the purchase money.” In this case, as we have seen, the defendant took immediate possession of the condemned premises, and has used and occupied them for its own purposes ever since. It is plain that these facts take the case out of the rule established in the Brooklyn case, and that the latter is, by implication, authority for the rule applied by the court below in the judgment appealed from. In this case the amount of plaintiff's claim was liquidated by the order confirming the award, and the time at which it was payable is fixed by the statute.

The provision of the charter of Buffalo which requires notice of demand before action brought has no effect upon the question of interest, and the required notice was given before the action was commenced.

We do not find that any of the exceptions taken by the defendant indicate error which affects the result - The judgment appealed from must be affirmed.

Macomber and Lewis, JJ., concur.  