
    Owen Donnelly, Pl’ff, v. The City of Brooklyn, Def’t.
    
    
      (Court of Appeals,
    
    
      Filed April 15, 1890.)
    
    1. Eminent domain—Award—Limitation.
    An action upon an award made for land taken by a city for a public purpose, in a case where no assessment has been made for the improvement, is an action upon a judgment and not for negligence, and the twenty years statute applies.
    3. Same.
    The order of the court confirming the award is a final adjudication on the question of damages, and its character as such is not affected by the fact that its immediate enforcement is for a time suspended by the law under which it is made or the privilege given to the city to make payment in a particular way at its option.
    3. Same—Interest.
    Where the city has taken no further steps in the proceeding, but has left the property owner in possession, interest does not run on the award until payment thereof has been demanded or some action is taken by mandamus or otherwise to compel the city to proceed or pay.
    Appeal from judgment of city court of Brooklyn, reducing and affirming judgment in favor of plaintiff.
    
      Joshua M. Van Cotí, for pl’ff; Almet F. Jenhs, for deft.
    
      
       Affirming 26 N. Y. State Rep., 27.
    
   Huger, Oh. J.

The defendant appeals from a judgment which affirmed, with a modification in regard to interest, a judgment of the trial court awarding to plaintiff the damages appraised for the appropriation by the defendant, under the right of eminent domain, of his real estate in Brooklyn for the purpose of widening North Second street.

The sole point made upon the defendant’s appeal is the bar of the statute of limitations. Its claim is that the gravamen of the complaint is for damages occasioned by the negligence of the defendant’s assessors in omitting to make an assessment upon the plaintiff’s property for the benefits derived from the improvement referred to, and, therefore, the action being based upon such negligence, that the limitation of six years applies and bars the action.

The plaintiff also appeals from the judgment and claims that so much of the decision of the general term as reverses the allowance of interest made by the special term and restricts his right to recover therefor to the time following the presentation of his claim and a demand for its payment, is erroneous. His contention is that the action is founded upon a judgment, which, although capable of being reduced by an assessment for benefits, still becomes a liquidated demand payable absolutely upon the neglect of the assessors to make an assessment within a reasonable time and thereby effect a reduction of the award, and that interest runs from the time such reduced award became payable. It is claimed by the plaintiff that all of the questions involved in the case, except that of interest, have been settled in his favor by the decision of this court in McCormack v. The City of Brooklyn, 108 N. Y., 49 ; 12 N. Y. State Rep., 817; and it is quite clear that, so far as the material questions are concerned, the claim is well founded. A reference to that decision, as well as to some others, recently considered in this court, affecting the liabilities of the city of Brooklyn under statutes authorizing the taking of private property for street purposes, will serve to narrow the range of discussion and determine the extent to which the principle of stare decisis should be applied in this case.

The following-, among other propositions, may be considered to have been established by the cases referred to. First That the effect of chap. 559, Laws of 1871, “to widen and improve North Second street ” in the city of Brooklyn, as well as other similar-acts, is expropriore vigore to condemn the land therein described for the purposes of the improvement provided for and to authorize the city to appropriate such land to such purposes, subject to the obligation on its part of making compensation therefor as provided by the act. McCormack v. Brooklyn, 108 N. Y., 49 ; 12 N. Y. State Rep., 817; Sage v. Brooklyn, 89 N. Y., 189; Genet v. Brooklyn, 99 id., 300. Second. That authority given in acts appropriating private property for public improvements which impose the duty of making payment therefor upon a municipal corporation and which also authorize the reduction of the amount of awards for the value of property taken by the amount of assessment to be made on the residue of the same lots for benefits, is not obnoxious to the constitutional obligation that it permits a taking of private property for public use without compensation. Genet v. City of Brooklyn, 99 N. Y., 297; Livingston v. The Mayor, etc., 8 Wend., 85.

Third. That the effect of the provision in such acts which authorizes the application of assessments pro tanto to the payment of awards, is to postpone the time of the payment of such awards until the city has had an opportunity to institute and complete the necessary proceedings to determine and fix the amount of such assessments, and the property liable therefor, through the regular agencies provided by its charter for that purpose. McCormack v. Brooklyn, supra.

Fourth. That the provisions of § 16, chap. 384 of the Laws of 1854, as amended by chap. 63 of the Laws of 1862, providing that the liability of the city for the payment of awards should not arise until assessments have been made and deducted from awards and the report of the assessors is confirmed, although incorporated into the act of 1871, could not be so construed as to authorize the city to prolong indefinitely the time for the payment of awards, or enable it to defeat the land owner’s right to the compensation which was guaranteed to him by the constitution. Sage v. Brooklyn, supra ; McCormack v. Brooklyn, supra.

Fifth. That land owners, in whose favor awards have been made under such acts, are respectively entitled to maintain actions, against the city, upon such awards, for the damages adjudged to them ; but in case assessments are made by the city for benefits,, the amount of such assessments must be deducted from the amount of the respective awards and judgments rendered for the balance only, and in cases where no assessments have been made and the making thereof has been unreasonably delayed, the land owner is entitled to recover the full amount of his award. Sage v. Brooklyn, supra ; Genet v. Brooklyn, supra ; Taylor v. Brooklyn, 108 N. Y., 616; 13 N. Y. State Rep., 897.

The defendant, while, practically, conceding the correctness of the propositions stated, yet contends that the action is based upon negligence, and is barred by the expiration of six years after the city has permitted a reasonable time to elapse for perfecting its .assessment, and the period of four months, after the right to proceed had occurred, is claimed to constitute such reasonable time. It is argued, in support of this claim, that the award of damages having been made and confirmed in November, 1876, and a reasonable time having elapsed thereafter for the making of an .assessment without action thereon by the city, such award became due and payable more than six years before the commencement of the action, which did not take place until November, 1888. Of course, if the defendant’s counsel is mistaken in the claim that the action is based upon negligence, the whole structure of his argument falls to the ground.

It is quite obvious that he has misconceived the plaintiff’s cause of action, as it, in fact, has no other foundation than a claim of damages for the value of his property, which has been taken under lawful authority by the city. It is for the taking of the property and not for any act of negligence on the part of the-city.

The scheme of the charter authorizes the city to pay awards in a particular manner if it chooses to do so, and the only consequence of its neglect to make such payments is, as we have decided, to leave the award enforcible for its whole amount. The negligence of the city is important only in respect to the effect it may have in depriving it of a possible defense founded upon the claim that the award was imperfect and not obligatory upon it to its full extent. Its neglect simply removed an apparent obstacle to the enforcement of the plaintiff’s demand.

The learned counsel for "the defendant has reviewed at some length the provisions of the statutes of 1871, 1854 and 1862, with a view of showing that no award of damages can be considered made until after the assessors have also made an assessment for benefits and deducted the amount of such assessment from the respective awards and struck a balance thereon, which balance he contends constitutes the only award contemplated by these statutes. He bases upon this conclusion the argument that the action must therefore be founded, not upon an incomplete award but upon the neglect of the city. This point is not open for discussion, as it was necessarily decided in the McCormack case that an award for damages was binding upon the city under the statute referred to, although no assessment was ever made or attempted. The complaint in that action was exclusively upon the award, and the reference therein to the negligence of the city was for the sole purpose of obviating a possible defence. The cases referred to by the counsel for the city to support his contention are authorities against him, since in each one recoveries were had upon awards similar to that involved in this case and such recoveries were respectively, on appeal, sustained in this court. Sage v. Brooklyn, 89 N. Y., 189; Genet v. Brooklyn, 99 id., 300; Taylor v. Brooklyn, 108 id., 616; 13 N. Y. State Rep., 897.

The contention that those actions were not founded upon awards because the assessments therein were deducted from the awards and judgment given for the balance only, does not merit serious discussion. The case of Reilly v. The City of Albany, 112 N. Y., 42; 20 N. Y. State Rep., 560, cited by defendant, does not help him. That action was brought to recover the contract price agreed to be paid by the city of Albany to the plaintiff for labor and materials furnished for paving a street. The city was authorized by its charter to raise funds for the payment of this liability by assessment upon the property benefited. Having refused, after performance of the contract, to levy such assessment or pay the contract price, it was held that its refusal constituted a waiver of the right to delay payment until the particular fund was raised, and it was therefore liable to pay the contract price. The present action is described in the complaint as based upon an award, which is alleged to have become a judgment between the parties as to the amount of plaintiff’s claim against the city by its confirmation in the supreme court.

We do not think its character as a final adjudication upon the question of damages is affected by the fact that its immediate enforcement is, for a time, suspended by the law under-which it was made, or by the privilege given to the city at its option to make payment in a particular way, if it manifests its intention to avail itself of that privilege within a limited period.

That such an award is a judgment within the spirit and meaning of that term, as used in the statute of limitations, seems to be supported by numerous cases in this, as well as other states. Thus Mr. Justice Beardsley, speaking of the reports of commissioners of estimate and assessment appointed by the supreme court in street opening cases, in Striker v. Kelly, 7 Hill, 9, says: “ These commissioners are but aids of the court, whose judgment is at last to settle the rights and fix the liabilities of the parties. The commissioners are to ascertain the value of the land which may be taken for or affected by the improvement to be made, and determine the amount of damages and benefit which will arise from it. This is to be reported to the court, with all needful explanations, and any person conceiving himself aggrieved may appear and urge his objections to what has been done.

• If the court is dissatisfied with the report it may be sent back for revision again and again, until the court shall be satisfied that it is according to the justice of the case, when judgment of confirmation is to be given. Thus the report becomes in effect the act of the tribunal by which it is confirmed and the judgment rendered is declared to be an effective lien upon the lands adjudged to be benefited.” The decision in this case was-affirmed in the court of errors. 2 Denio, 323. Mr. Justice Jewett, delivering the opinion in Embury v. Conner, 3 Coms., 523, says: “ That the supreme court, under the provisions of the Hew York street law, exercises its powers as a court, and not as commissioners appointed by the legislature, and that its decisions in such matters are judgments'of that court.” In Dolan v. The Mayor, etc., 62 N. Y., 475, Judge Rapallo says “ that proceedings for such assessments are conducted before the court, and its confirmation of the report of the commissioners is a judgment pronounced on a full hearing of the parties, and conclusive in its character as to all questions litigated, or which might have been litigated, in the proceedings.” In the Matter of the Department of Parks, 73 N. Y., 565, it was said by Judge Earl that “ the award, after confirmation, becomes in the nature of a judgment, which cannot be attacked collaterally. It is as final and conclusive as to all parties as a judgment.” See Mayer v. The Mayor, etc., 101 N. Y., 288.

In The Mayor, etc., v. Colgate, 12 N. Y., 148, it was said: “ The assessment and its confirmation were judicial acts,” and “it will work no injustice "x" * * to apply the limitation provided by the law to judgments, to this lien also.” In Fisher v. The Mayor, 67 N. Y., 73, an action to recover an award in which an assessment was set up as an offset, Judge Andrews, writing the opinion, says in substance, that the case of The Mayor, etc., v. Colgate is a decisive adjudication of the question of the period of limitation to be applied to assessments in the city of Hew York, and concludes that twenty years are necessary to bar an action therefor, whether under the statute it be considered as a judgment or a mortgage.

It was held in Kohl v. U. S., 91 U. S., 367, that the liability of a municipal corporation to pay for property taken under the right of eminent domain, for public use, was a common law liability, and that proceedings taken to enforce such liability were suits at common law.

Humerous other cases are cited by the learned counsel for the plaintiff upon this point; but we deem it unnecessary to make further extracts from them as the question must be regarded as settled by the decisions referred to.

We conclude, therefore, that the action is not based upon negligence and is founded upon a judgment within the meaning of that term as used in the statute of limitations, which requires the lapse of twenty years to constitute a defence. The appeal of the defendant cannot therefore prevail.

The question in relation to interest upon the award, raised by the plaintiffs appeal, is a more serious one and is not entirely free from doubt. The case is sui generis and must be determined from a consideration of its peculiar character and circumstances. We entirely agree with the general proposition stated by him, that “ when interest is stipulated by contract, it is recovered (as interest or damages) according to the contract. When interest is not stipulated by contract, but default is made to pay a liquidated debt when due, interest is recoverable as damages from the date of default.”

Under this rule, the question arises, when did the duty to pay this award become imperative ? Although we have held that the award is a judgment and enforcible as such, yet the time and mode of enforcement is regulated by the statutes relating to the subject in force in the city of Brooklyn, which make the award a tentative proceeding to be controlled, as to its collection, by subsequent events. As stated by the learned counsel for the plaintiff in his brief, the provisions of the statutes, 2 R. S., 364, § 9, and § 1211, Code of Civ. Pro., fixing the time for the running of interest upon judgments, are simply declarations of the rule at common law that damages are recoverable as an indemnity for the non-payment of liquidated pecuniary demands at maturity, when they should have been paid. It was held in Sanders v. L. S. & M. S. R. Co, 94 N. Y., 641, that interest was recoverable upon such judgments, “not by virtue of any contract to pay interest, but simply as damages because the defendant was in default" in the discharge of its obligation to the plaintiff and wrongfully withheld money from him.” The same rule in the same language was laid down in O'Brien v. Young, 95 N. Y., 428.

It is obvious that if the duty to pay has not become absolute, the liability for interest does not arise, either at common law or by § 1211 of the Code.

The fact that the taking of the plaintiff’s property in this case was constructive only, and that he has never been actually disturbed in its use or possession, must, under the circumstances of the case, be considered to have an important bearing upon the subject. The only step on the part of the city looking towards the reduction of the property to possession seems to be the proceeding taken in 1876 to appraise the plaintiff’s damages, and procure confirmation of the award. Its continued inaction for twelve years thereafter afforded strong evidence that it was unwilling to go on with the contemplated improvement, and from all that appears, the plaintiff acquiesced in the delay of the city. He had the right at all times, after the making of the award, to proceed by mandamus to compel the city to complete an assessment for benefits, and after the lapse of a reasonable time for it to do so, to sue it for the damages sustained in the talcing of his property. He did neither of these things until the commencement of this action, and seemed until then to be willing that the city should abandon its contemplated improvement if it desired to do so. Undoubtedly the parties interested could by mutual consent discontinue the prosecution of the improvement, and there is much in the case to authorize the inference that this was contemplated by them. At all events, it is conceded on all hands that the time for the payment of the award was not definitely fixed by the charter, and that its amount could be unsettled and reduced by the subsequent action of the city in making assessments.

The scheme of the Brooklyn charter contemplates the reduction of awards by assessments, and the lapse of sufficient time to make them after confirmation before liability to pay the awards becomes imperative. The time for such payment under the law seems to be extended so long as the right to make assessments remains, and it must, therefore, vary with each particular case. Obstacles and delays may occur in one case that do not arise in another, and the duty to pay must depend upon the circumstances of the case. It cannot be said, under such circumstances, that the sum for which the city is liable is so fixed and certain, or the time of payment so definite, that a period can before demand be accurately determined from which interest shall commence to run.

This period is capable of being fixed by the land owner, ■either through mandamus proceedings, by an action, or a formal demand for the payment of damages, and he has no just reason to -complain of any result which has been produced by his own laches.

It is conceded by the plaintiff that the legislature could lawfully postpone the payment of awards by providing an equivalent for the payment of interest, and it was held by this court in Hamersley v. The Mayor, etc., 56 N. Y., 533, that so long as the statute left the owner in the possession and use of his property it might be deemed a substitute for the payment of interest on an award, and a practical compliance with the constitutional requirement of compensation for property taken. It was there said by Judge Andrews : “ 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 the interest upon the purchase money.”

In the case in hand no provision is made by the charter for the payment of interest; but, as we have seen, very definite provisions are made for the postponement of the payment of the award.

Within the principle laid down in the cases cited, it would seem to be lawful for the legislature to postpone the payment of awards and of interest thereon until the city has taken actual possession of the property condemned if the owner was permitted to reclaim his property, and we do not see why the omission to provide for the payment of interest and the provisions to secure a definite postponement of the payment of the award are not a substantial equivalent for the suspension of a right to draw interest, at least' while the owner retains the use and possession of his land and omits any steps to fix the liability of the city.

The judgment of the general term should be affirmed, without costs to either party on this appeal.

All concur.  