
    In the Matter of the Petition of The Trustees of The New York & Brooklyn Bridge, App’lts, v. William Irving Clark et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed January 31, 1893.)
    
    Condemnation proceedings—Award—Interest.
    Certain landowners moved at special term for confirmation of an award of damages for land taken. The court refused to confirm the award, vacated it and ordered a re-appraisal by new appraisers. On appeal by the land owners the general term reversed the order of the special term, and gave judgment, with interest, from the date of the special term order. Held, error; as there was no contract obligation to pay interest on the award, no statutes imposing or requiring its payment, and the owners were in possession until the final order was entered.
    Appeal from judgment of the supreme court, general term, second department, reversing order refusing to confirm report of commissioners of appraisal.
    
      James G. Bergen, for app’Its;
    
      George W. Wingate, for resp’ts.
    
      
       Modifying 47 St. Rep., 932.
    
   Earl, J.

This is a condemnation proceeding to acquire lands for the New York & Brooklyn Bridge Company. Commissioners of appraisal were appointed, and the land being in the possession of tenants, it became necessary to appraise the value of the interest of the tenants as well as the interest of the fee owners. They awarded to the owners, “ for the fee of said premises,” the sum of $104,625, and a separate sum to each of the tenants. The award to the owners “ for the fee ” must be understood to be for the fee subject to the leases. The appraisers in such a case may pursue either one of two methods. They may appraise the entire value of the premises and then apportion such value among the fee owners and tenants, or they may in the first instance appraise the value of each separate interest and thus ascertain the entire value. The process in each case must obviously be substantially the same. They must in in any event appraise the value of each interest separately. We cannot say which method was pursued in this case, and it does not matter. The award of the appraisers having been confirmed by the general term is not reviewable here.

Such has always been the law in this state in this class of cases, and there is nothing in the recent revision, Code of Civil Procedure, chap. 23, of the condemnation law changing it Railroad Co. v. Marvin, 11 N. Y., 276; Matter of N. Y. C. & Hud. River R. R. Co., 64 id., 60; Matter of D. & H. Canal Co., 69 id., 209; Matter of Kings Co. El. R. R. Co., 82 id., 95; Matter of Prospect Park & Coney Island R. R. Co., 85 id., 489; Matter of Board of Street Opening, 111 id., 581; 20 St. Rep., 133; Matter of N. Y. & Brooklyn Bridge, 115 N. Y., 652; 23 St. Rep., 998; Matter of Metropolitan Elevated R. Co., 128 N. Y., 600; 38 St. Rep., 881; Matter of Board of Street Opening, 133 N. Y., 434; 45 St. Rep., 658.

It is the award of the appraisers which, having been confirmed, is not reviewable here. The action of the general term may be such as to be the subject of review. If it should undertake to modify an award by increasing or diminishing it, or to exercise any other jurisdiction in reference thereto not conferred upon it, its action would be reviewable here. In this case the landowners moved at special term for confirmation of the award. The motion was opposed by the bridge trustees, and the court refused to confirm the award, vacated it, and ordered a reappraisal by new appraisers. From the order of the special term the landowners appealed to the general term, and there the order of the special term was reversed and judgment was rendered September 16, 1892, confirming the award as to each defendant, with interest from April 30, 1892, the date of the special term order. The appellants claim that this provision in the judgment as to interest was unauthorized and erroneous, and we are of that opinion.

Before interest can be allowed in any case it must be by virtue of some contract, express or implied, or by virtue of some statute, or on account of the default of the party liable to pay, and then it is allowed as damages for the default. Here there was no contract obligation to pay interest upon the award, and there was no statute imposing or requiring its payment, and it only remains for inquiry whether the bridge trustees were in default in not paying the award on the 30th day of April. The court, at special or general term, cannot alter the award "or increase its burden, except by the imposition of costs in the cases specified in the law. It may refuse to confirm the report of the appraisers, and, in that event, all it can do is to set aside the report and order a new appraisal before the same or other appraisers; and the Code, § 3371, provides that “ if the report is confirmed, the court shall enter a final order in the proceeding directing that compensation shall he made to the owners of the property pursuant to the determination of the commissioners, and that upon payment of such compensation the plaintiff shall be entitled to enter into the possession of the property condemned, and take and hold it for the public use specified in the judgment”

Until the final order of confirmation is made, the plaintiff cannot pay the award, and cannot take possession of the land. Until that time the landowner retains possession of his land and takes the fruits thereof. Until that time there can be no default on the part of the plaintiff, and he cannot be subjected to damages for not paying the award. The landowner should not have the possession of his land, and, at the same, time, receive the interest on the value. In this case the fee owners received, or were entitled to receive, rents from their tenants, and they should not, during the same time, have interest upon the value of their property. It is doubtless an inconvenience to the landowner, sometimes causing him damage, that the condemnation proceeding may hang over his property until the final order has been entered. But that is an inconvenience like that resulting from any litigation for which the law affords no remedy or compensation. If he gets the value of his property at the time his title and possession are taken from him, he obtains all the compensation the constitution guarantees to him. United States v. Engeman, 27 Abb. N. C., 141; In re Pigott, L. R., 18 Ch. Div., 146; Edmands v. Boston, 108 Mass., 535. Interest on the award from a prior date would frequently give him more than a compensation. The only way a land owner can get interest upon the amount of the award is to enter and docket a judgment as provided in the condemnation law and then he can collect interest upon his judgment as he could upon any other judgment. The condemnation law makes provision for interest upon the award in but one case, and that is where the plaintiff abandons the condemnation proceeding after an award and afterward renews it. In that case he must tender or deposit the amount of the award with interest. The powers of the supreme court in a condemnation proceeding are statutory, and it cannot arbitrarily order the plaintiff in such a proceeding to pay interest as damages for which by no default he has become liable. It is said that the general term may do what the special term ought to have done. That is quite true. It may make the final order which the special term should have made. But it cannot create a default which did not exist. It cannot impose damages upon the plaintiff for which it is not legally liable. If the award had been in a condition to demand interest on the 30th day of April, then by restoration of the award by the action of the general term the land owners would have been entitled to interest as if the award had been confirmed at the special term. Then it would have been like a verdict set aside at the special term and subsequently reinstated at the general term. But the award could not draw interest until after its confirmation, and that was for the first time effected by the order of the general term.

The order of the general term should, therefore, be modified by striking therefrom the allowance of interest and, as thus modified, affirmed, without costs to either party in this court.

All concur. ■  