
    In the Matter of the Application of Daniel E. Seybel and Others, as Executors, etc., of Isaac M. Dyckman, Deceased, Respondents, for a Writ of Mandamus Directing Herman A. Metz, Comptroller of the City of New York, to Pay Certain Awards of Damages Made to the Petitioners for the Widening of West Two Hundred and Thirtieth Street from Riverdale Avenue to Broadway. The City of New York, Appellant.
    First Department,
    June 21, 1907.
    Eminent domain — award on street opening — accord- and satisfaction.
    When a municipality claiming to he entitled to offset against moneys due to an -estate for lands taken on a street opening the amount of rents collected by the executors subsequent to the date that title vested in the municipality, waives its claim to the rents collected and in settlement of the dispute the executors without protest sign and acknowledge a receipt under seal for the amount of the • award and interest which had accrued from the time of the original demand for payment '‘in full payment and satisfaction of said awards and the interest thereon,” there is ah accord and satisfaction and the executors are not entitled to recover further interest from the date of demand to date of actual payment.
    It is immaterial whether as a matter of law the city’s claim to right of offset were well founded, so long as it was made in good faitf).
    Ingraham and McLaughlin, JJ., dissented, with opinion.
    Appeal by the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of March, 1906, directing the comptroller of the city of New York to pay certain awards of damage.
    
      John P. Dunn, for the appellant.
    
      Joseph A. Flannery, for the respondents.
   Scott, J.:

The City of New York appeals from an order requiring the comptroller of the city of New York to pay to Daniel E. Seybel and others, as executors of Isaac M.' Dyckma.n, deceased, a sum of money representing the interest claimed to be due and unpaid to said executors upon 'an award made to them for the widening of West Two Hundred' and Thirtieth street. There is "no ■ dispute as to the facts, which.are as follows: Proceedings for the widening of the street were initiated on March 5, 1896, and in due course commissioners of estimate and assessment were appointed. ' By resolutiori of the board of street opening and improvement, title to the land to be acquired for the widening vested in- the city on'October 20, 1897. The report of the commissioners was confirmed, on Octo- " ber 21,. 1903,, and by it there was awarded to tire above-named executors the sum of $83,343.82, with interest from the date, that title to the property taken vested in the city. On February 15,1904, one of the executors demanded payment and the comptroller was on that , day prepared and willing to pay them the sum of $114,944.99,which is conceded to have been the amount; then due for said award and ' interest. It appeared, however, that there was charged against said executors, on the books of the comptroller, a considerable sum on • account of rents alleged to have been collected by said executors' from the premises and property acquired by the city since the date of vesting of title* and the comptroller insisted that before the full amount of the award and interest was paid to the executors, they should" pay to the city the amount, thus claimed to be due from them. The executors refused to. accede to this demand' and the matter remained in abeyance until July 5,1904, when .the comptroller, on behalf of the city* apparently waived its claim to be paid the . rentals collected by The' executors, and paid to them arid they accepted the aforesaid sum of $114,944.99, signing-and acknowledging a receipt under seal, whereby they acknowledged that they' had received said smn “in .full payment and satisfaction of said' awards and1 the interest thereon,”-and granted and released to the city of New York, the lots and parcels of land represented by said awards, and'all right, title and'interest -therein.. of said executors, and of tli’e estate of- Isaac M. Dyckman, deceased. The amount thus paid and accepted represented the awards with interest, to February 15, 1904, the date oh "which demand had been made for their payment, and the counter-demand had been. made upon the executors for the rents- collected by them. On January 31, 1906, nearly nineteen months after.the payment aiid acceptance* the executors began.this proceeding for the interest on the awards from February 15, 1904, to July 5, 1904, the date of actual payment. We do not understand that the city disputes the contention made on behalf of the petitioners that in a case like the present interest on the axvard is given as part of the- compensation .alloxved for the land, and that ■ the property owner to whom such award is made is entitled to interest from the date that title vests in. the city doxvn to the date of payment. (Matter of Mayor [Cromwell Ave.], 96 App. Div. 424.) The petitioners were, therefore, entitled to insist upon payment of interest, upon the awards down to the date of payment, if there was no legal offset or counterclaim to said awards.

'The city contends, however, and as we think with reason, that the case presents all the elements of a complete accord and satisfaction, and-that, under the circumstances, the amount.paid to the executors must be deemed to have been received and accepted by them in satisfaction of a contest and dispute, concerning the mutual 'claims betxveen themselves and the city. “It is the settled law of this State that if a debt or claim be disputed or contingent at the time of payment, the- paynient when accepted, of a part of the whole debt, is a good satisfaction and it matters not that there was no solid, foundation for the dispute. The .test in-such cases, is, Was the, dispute honest- or fraudulent? If honest, it" affords the basis for an accord between the parties, which the laxv favors, the execution of which isthe satisfaction.” .'(Simons v. American Legion, of Honor, 178 N. Y. 265.)

A question very similar to the one now.presented arose in Uvalde Paving Co. v. City of New York (99 App. Div. 327), wherein this court said:" Moreover the city asserted the right to make the deduction.- It had plausible grounds for such assertion, and even though it conceded the right of the plaintiff to recover the amount it actually paid, still this would constitute an accord and satisfaction regardless of the validity of the liquidated damage clause, until the release is impeached.”

It certainly cannot be said that the claim for rentals collected by the executors, after title vested in the city,' was dishonest, or even without a plausible foundation. The'executors in their petition are careful not to deny that they did collect the rents for which a claim was made upon them. All that they say upon that subject is “that there xvas no legal claim.or offset of the City of Hexv York against said moneys due to them,” which they may have behaved.to be entirely true, and perhaps rightly, even if they had collected rents from the property after title thereto had. passed to the city, And yet it was hot unreasonable for the comptroller to assert such claim. It was said by the Court of Appeals respecting a somewhat similar itate of affairs: “ 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 his land and interest upon the. purchase ' money” (Hamersley v. Mayor, etc., of N. Y. City, 56 N. Y. 538); and by seetionz151 of the Greater New York charter (Laws of 1901, chap. 466), as amended by chapter 190 of the Laws of 1906, it ' was made the duty'of the bureau, in tlie comptroller’s office, for the collection of the city reverine “to collect rental for the. temporary use and occupation of property"-acquired' by the city for public purposes between the time of the acquisition thereof and the time' when 'the same can be actually utilized for the purposes for which it was acquired.” This statute was in force-for a considerable time after the .city had acquired title to the petitioners’ property. We do„not decide, and-are not called upon to decide, whether the city’s claim against the executors, was well founded. It is sufficient if honestly 'made. There is certainly nothing before ris to cast any doubt upon the. good faith with which it was made, and it is not surprising or unreasonable that the executors should have been willing to avoid the attempt to enforce the claim against them, by waiving interest upon the awards for a few months. There is no evidence that the executors accepted payment of the award under protest or that they effectually reserved the right to insist upon any further payment. Certainly, their full and solemn receipt indicates nothing of the. sort, and no evidence of any such protest or reservation is to be found among the records of the city. Their general statement that they accepted payment “ with the express reservation of any and all claims, due upon said award of. , damages as aforesaid” is insufficient as it does,not show how or to whom such reservation was expressed,, and may refer to a mere mental process known 'only to themselves. It may well be that, if the fact of such reservation had been com municated to the comptroller he would have declined- to abandon the .city’s claim' against the executors.- The length of timé that the executors allowed to elapse after receiving payment and before the commencement of this. proceeding, while not affecting'their legal right, is some indication that they understood and intended at the time that they were completely acquitting the city of its debt to them.

The order should be reversed, with ten dollars'costs and disbursements, and the motion denied, with ten dollars costs.

Laughlin and Clarke, JJ., concurred ; Ingraham and McLaughlin, JJ., dissented.

Ingraham, J. (dissenting):

I dissent. The city of New York, under the power given to it by the State, has taken these relators’ property without their consent. It could only take that property by paying to the relators its value upon the day it was taken, and as the city was authorized to take the property before tl.ie payment, it was'reqiiired to pay interest on the amount that was ascertained as the value of the property until it should be paid. Such a provision was necessary to make the provision allowing the city to take the propérty legal under the Constitution; and the city could not avoid this obligation by - claiming some offsét to the amount as a liability of the relators to it which it was entitled to deduct. What the relators were entitled to was the payment by the city of the actual value of the property and interest to the time. of. payment. The claim of the city that it was entitled to deduct some amount which it is claimed the relators had collected for the property after the title had vested in the city does not seem to have been justified. Theré is nothing to show that the city demanded possession of the property and the relators would not have been liable to. the city for use and occupation unless some ■ relation of landlord and tenant was established, of which there is no claim. Until the city demanded possession of the property, the former owners who remained in possession were not trespassers. This claim made by the comptroller was, so far as I can see, absolutely without justification, and his refusal to deliver the warrant to the relators, based upon such a claim, clearly imposed the obligation of'paying interest until he’ actually delivered the warrant. When the warrant was actually delivered somé months afterwards, the city actually owed the relators the interest to the date of payment, It is well'settled that the delivery of a lesser amount than "is actually due does, not discharge the whole indebtedness.' The execution of this receipt, there not being any provision for a general release, does not estop the' relators from afterwards proving that their claim was not entirely satisfied. The fact that a seal was attached gave it no greater effect. .It was still a receipt and- a receipt only, and was open to explanation. There is nothing -to justify the court in finding that there was an accord and satisfaction or any settlement óf1 conflicting claims. All that the city .did was to deliver a check that it conceded was due. The relators conceded nothing and received no advantage except payment of an - amount that-was concededly due. I certainly think that this claim to deduct some assuméd - rentals that the former owner of the property had received after the title vested in the city was not based upon “ plausible grounds; ” that it was absolutely unjustified -by anything. that appears upon this record; -but whatever may be the ground for a refusal to pay, the city has never released the relators from any claim that it may have for such rents. There was no settlement - of any dispute. The city-released nothing. The city paid nothing except what it coiiceded to be due, and -the payment of what was conceded to be due, but which was- considerably less than what was actually due, where the city gave up no claim that it had 'against the person to whom it paid the money, cannot, upon any principle that I am aware of, be tortured into an accord and satisfaction.

I .think the judgment should be affirmed.

McLaughlin, J., concurred.

Order reversed, with ten dollars costs and disbursements, and' motion denied, with ten dollars costs;  