
    Roseanna Cassidy, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Municipal corporations—Street opening—Conflicting claims to an award—Notice to city.
    One K. was in possession of a leasehold estate under certain conveyances which C. alleged to be fraudulent.. Commissioners of estimate and apportionment made an award to K. for a party wall taken in extending a street. The city paid the award to K. Held, that in the absence of notice of C.’s claim the city was protected in paying K.
    3. 3ame—Notice—Lis pendens.
    C., prior to the actual payment of the award, had begun an action against K. to set aside said conveyances and had filed a Us pendens in the action. Held,, that the lis pendens was not notice to the city.
    3. Same—Election of remedies—Ratification.
    In said action C. had claimed to recover of K. the award paid him by the city. Held, that C. had made his election and his attempt to recover the award of K. was a ratification of its payment to him by the city.
    Motion for new trial upon exceptions ordered to be heard in the first instance at general term.
    
      J. 0. Foley, for app’lt; G. W. Ridgway, for resp’t.
   Van Brunt, P. J.

While concurring in the result arrived at by Mr. Justice Ingraham in this case, it seems necessary to. notice that part of the opinion in which it is claimed that it is decided by the court of appeals in the Matter of Department of Parks, 73 N. Y., 560, that where the commissioners have made an award distinctly to one person in proceedings under the act of 1813 and cases to which the provisions of that act are made applicable, the city is bound absolutely to pay the award to the person to whom the award is made, leaving any other person claiming title to the property condemned and to the award to their action against the party to whom the award is made.

Upon reference to the case cited it will be seen that the court in speaking of the final and conclusive character of the award was referring to the interest condemned and its value and to those features only.

The court say: “ The award of the commissioners of estimate and assessment is required by the statutes to be confirmed by the supreme court, and when so confirmed is made final and conclusive upon the city and the owners of the land taken. Under the statute of 1813 there is ample opportunity for the correction of all mistakes of law and fact, and unless they are corrected in the proceedings before confirmation all parties interested are precluded from complaining of them. The award after confirmation becomes in the nature of a judgment which cannot be assailed collaterally. It is final and conclusive upon all parties as a judgment.” The court then say: “The amount awarded must be taken to have been made for the interest of the unknown owners, whatever it was. If it was too great the city should have moved to correct it before confirmation of the award.” The sole question before the court upon that application was to determine who the unknown owner of the land was, and when that was determined he was entitled to the money just as if he had been known, and the award had been to him by name.

It is immaterial whether he owned an absolute fee or a fee subject to a public easement. The amount awarded must be taken to have been made for his interest, whatever it was. That seems to have been the question which was adjudicated upon in the case cited and nothing more. Furthermore, the court could not have intended to hold that the report of the commissioners was final and conclusive upon the city in view of the provisions of § 183 of the act of 1813, by which it was provided that: “The respective person or persons, party or parties, in whose favor the same (the awards) shall be reported, or his, her or their executors, administrators or successors, at any time or times, after application first made, etc., may sue for and recover the same, with interest from and after the said application therefor and the costs of suit, in any proper form of action against the said Mayor, etc., in any court having cognizance thereof, in which it shall be sufficient to declare generally for so much money due to the plaintiff or plaintiffs therein, by virtue of this act, for premises taken for the purposes hereinbefore mentioned, and it shall be lawful for the plaintiff or plaintiffs to give any special matter in evidence under such general declarations; and this act and the report of said commissioner, with proof of the right and title of the plaintiff or plaintiffs to the sum or sums demanded, shall be conclusive evidence in such action.”

It is clear that if the report was to be conclusive as to the person named, the legislature would not have provided that the report with proof of the right and title of theplaintiff or plaintiffs to the ,sum or sums demanded shall be conclusive evidence in such .action. If the report itself was conclusive upon the point of ■ownership it would clearly not have been deemed necessary that proof thereof should be offered upon the part of the plaintiff.

This view is further emphasized by § 184 of the same- act, which provides that: “ Where any such sum or sums or compensation so to be reported by the said commissioners in favor of -any person or persons, whether named or not named in said report, shall be paid to any person or persons, party or parties whomsoever, when the same shall of right belong and ought to have been paid to some other person or persons, it shall be lawful for "the person or persons to whom the same ought to have been paid to sue for and recover the same as so much money had and re•ceived to his, her or their use, by the person or persons respectively to whom the same shall have been so paid.”

Here the right of the real owner to recover the award, even ■after it has been paid to the person named in the report, is distinctly recognized. How much more would he have the right to .recover before any payment to the person named in the report was made.

This is the construction put upon this section of the act of 1813 by the court of appeals in the case of Spears v. The Manor, 87 N. Y., 359.

In that case an award had been made to one Matthews as mortgagee after another claimant of the amount of the award commenced an action in equity to restrain the defendant, the city, from paying the award to Matthews and to establish the plaintiffs’ claim thereto. After the commencement of this action Matthews sued the city to recover as mortgagee the amount of the award. The city made default and judgment for the full amount was entered against it, which it paid, it claiming that, by virtue of the particular act then under consideration and various provisions of the statutes in relation to the opening of streets and avenues, the plaintiffs could not maintain their action.

It was held by the court of appeals that under these provisions the ascertainment of the person entitled to damages was incidental and the report of the commissioners was not conclusive in regard thereto, and.that the payment by the city after notice was at its peril, and the learned judge who wrote the opinion, being the ■same who wrote the opinion in the case first cited, uses the following language: “Under these provisions of law, the contention on the part of the appellants is that the report of the commissioners was so far conclusive as to the person entitled to the award that the city was obliged to pay the same to Matthews, and that the only remedy of the plaintiffs was to recover the ■ amount thereof of Matthews, after payment to him. Our attention' has been called to no decision giving such a construction to these provisions of law.

“ The main purpose of the appointment of commissidners was to have the damages in consequence of lands taken for street improvements appraised and the amount thereof assessed as directed by law and for that- purpose their report, when confirmed, unless vacated or set aside by some direct proceeding, was declared final and conclusive. The ascertainment of the names of the persons whose lands were taken orto whom damages were to be paid was merely incidental to the main purpose, and was for subsequent guidance of the city authorities and the protection of the city. The very terms in which the provisions of the law are expressed, show that the report was not to be conclusive as to the persons entitled to the damages awarded, because it is .provided in § 184 that even after payment to the person named "in the award, the rightful claimant of damages may recover them of the person thus paid; and in § 183 it is provided that before the person named'in the award can recover the amount thereof of the city, he must, prove not only the report of the commissioners, but his right and title to receive the same; hence, as we construe that section, in the suit by Matthews against the city for this award, if the city had defended, he would have been obliged to prove his right and title to the award, and he could have been defeated by proof that these plaintiffs were entitled to receive payment thereof. It is undoubtedly true that the city would be justified to pay the person named in- the award unless it had received notice of an adverse claim. After such notice, and certainly after suit commenced for the award by a person nqt named in the report as entitled thereto, the city would pay to the person named therein at its peril. This construction of the statutes can lead to no serious embarrassment of the city in paying such awards, because, in the case of conflicting claims known to it, it can compel.an interpleader and thus relieve itself from embarrassment or double responsibility. The construction contended for would operate unjustly upon persons situated, like these plaintiffs.

“ They could not sue the city, and they might not be able to compel the city to pay to the person named in the award, and they thus might be compelled to wait an indefinite time until the person named in the award should choose to compel payment to him, and after such payment the only security they would have for their damages would be the personal responsibility- of such person.

“ Here the plaintiffs were in fact entitled to the award made. They had a double remedy; before payment by the city to Matthews they could sue the city; after payment to Matthews they could sue him.”

The claim upon the part of the plaintiff that the filing of the notice of lis pendens in the action brought by her against Kennedy in respect to this property was notice to the city cannot be maintained, because it is well settled that even if a deed has been recorded (and certainly a lis pendens is no greater notice than a deed) the payment by the city in good faith to the party named in the report as the owner will protect the city against the true owner.

It is only when actual notice is given to the city that it has any reason to refuse to pay to the party named in the report

It would seem also that the plaintiff having elected to call Kennedy to account for the money which he had received, she is deprived from pursuing any remedy she might have had against the city.

The criticism passed upon the case of Fowler v. Bowery Savings Bank, 113 N. Y., 455; 23 St. Rep., 130, by the counsel for the plaintiff does not seem to distinguish it in principle from the case at bar.

The exceptions, therefore, should be sustained and a new trial ordered, with costs to defendant to abide event.

Ingraham, J.

There are two objections which are fatal to-plaintiff’s recovery in this action.

Upon the confirmation by the supreme court of the report of the commissioners of estimate and assessment relative to the opening of the street mentioned in the complaint, the order confirming such report became 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. Dolan v. The Mayor, etc., 62 N. Y., 475.

And this principle has many times been reaffirmed by the court of appeals. The last case is Donnelly v. The City of Brooklyn, 121 N. Y., 17; 30 St. Rep., 501.

It is a little difficult to see why the confirmation of the report is not conclusive between the owner of the property and the defendant as to the person to whom the award is payable.

By § 970 of the Consolidation Act, the commissioners were required to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage, or of the benefit and advantage over and above the loss and damage,, as the case may be, to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, etc., required for the improvement Such owners,lessees, parties and persons respectively entitled unto or interested in the lands, tenemens,etc.are parties to the proceedings; they have the right to appear before the commissioners and before the court,and the commissioners, and the court have power to correct any error in the report, and upon the report being confirmed it is conceded to be conclusive-as to the amount of the damages awarded and as to the amount, of the assessment for benefit.

The ownership of the award was a question that could have been litigated before the commissioners and before the court, and when the com missioners report that an individual is entitled to-the award, and such report is confirmed by the court, I do not see any reason why such an adjudication is not as conclusive as-between the owner of the property and the defendant as any other adjudication necessarily involved in the proceeding.

Such an adjudication is not conclusive as between claimants to the fund, for by § 184 of the act of 1813, re-enacted in § 993 of the Consolidation Act, it was expressly provided that where the ■sum reported by said commissioners in favor of any person or persons, whether named or not in such report, shall be paid to any person when the same shall of right belong to some other person, it shall be lawful for the person to whom the same ought to have been paid to sue for and recover the same as so much money had and received to his or their use by the person or persons respectively to whom the same shall have been so paid, but as between the owner of the property and the defendant, one of the questions upon which .the commissioners were to report, and which the ■court by its order confirming the report adjudicated upon, was the individual to whom the award should be paid.

In the case of Spears v. The Mayor, 87 N. Y., 372, the court of appeals appear to have held that this judgment was not conclusive as to the persons entitled to the damages awarded, although at page 374 the court say: “ If the commissioners had made the award distinctly to Matthews for his mortgage interest, then no other person could have claimed such award, and the city would have been absolutely bound to pay him upon principles laid down in the Matter of Department of Parks, 73 N. Y., 560.”

In that case the rule is stated as follows: “ Under the statute of 1813 there is ample opportunity for the correction of all mistakes of law and fact, and unless they are corrected in the proceedings before the confirmation all parties interested are precluded from complaining of them. The award after confirmation becomes in the nature of a judgment which cannot be assailed collaterally. .It is conclusive upon all parties as a judgment.”

In this case the award of the commissioners was to James C. Kennedy for the party wall, $900, and it is for that award that the plaintiff seeks to recover.

It would seem, therefore, that such an award made by the commissioners to Kennedy for his interest in a party wall comes within the rule, as stated in Spears v. The Mayor, etc., that no other person could claim it and the city was bound absolutely to paly him. But whether that is so or not, it is clear that the city would be justified in pajting Kennedy unless it had received a notice of an adverse claim to the fund. See Spears v. The Mayor, supra.

The evidence is that the city did pay Kennedy the amount of the award, and unless at the time of such payment the city actually had notice of the adverse claim, the city was protected by such payment and the plaintiff cannot recover.

It is not claimed that any express notice was given to the city, but it appeared that prior to such payment plaintiff had commenced an action against Kennedy claiming the title to the property and had filed a lis pendens, and it is claimed on behalf of plaintiff that the filing of such lis pendens was a notice to the city that she claimed this award.

We do not think that the notice of Us pendens was a notice to the city of the adverse claim. On the confirmation of the report the title of the property taken for the improvement vested in the •city, and the city became bound to pay to the person named, or to the owner of the property, the amount awarded as the value of the property taken, and such obligation of the city became a right •of action. No specific fund was set apart as belonging to the owner of the property the title to which vested in such owner.

The plaintiff was in contemplation of law' a party to the proceedings, and her lis pendens was subject to the judgments in that proceeding.

The city was, therefore, justified in assuming that the direction •of the court directing the money to be paid to Kennedy was, as between plaintiff and defendant, a protection for the payment of such money, notwithstanding any prior claim or general notice that the plaintiff had given that she claimed an interest in the property, and that any claim that would entitle plaintiff to the Award made before the adjudication had been determined by the order of the court confirming the report of the commissioners Adversely to the plaintiff.

We are also of the opinion that the action of the plaintiff in seeking to recover from Kennedy the amount paid to him by the ■city was a ratification of such payment and legalized it as between plaintiff and the city.

The action given to the plaintiff against the person to whom the payment had been made was by the statute declared to be an Action for money had and received. Such an action depends upon the receipt by the defendant of money belonging to the plaintiff, .and when plaintiff sought to recover such money from Kennedy it legalized the payment by the city to Kennedy, thus discharging the city.

The plaintiff could not occupy the position of claiming that the •city had paid her money to Kennedy and obtaining a judgment .against Kennedy for such money and at the same time claim that the city was still her debtor and owed money to her.

See Fowler v. Bowery Savings Bk, 113 N. Y., 455; 23 St. Rep., 130, where the court say, “ But if a trustee is bound to pay money "to a beneficiary as a debt due from him to the beneficiary, then if he makes payment to another person he has not paid the debt, •and the money paid is not in fact the property of the beneficiary.. In such case the beneficiary may ignore the payment and sue the "trustee as his debtor, or he may ratify and adopt the payment and sue the person receiving the money as his debtor, but he cannot do both. There is in such a case a breach of trust or not as he may elect, and his election once effectually made is conclusive forever.”

In this case the defendant was upon the confirmation of the report liable to pay to the owner of the property the award made by the commissioners; that money was paid to Kennedy. Assuming that plaintiff’s position is correct, that she then had a cause of action against the city for the amount of the award as owner of the property, she could either sue the city disregarding the payment to Kennedy, or sue Kennedy, affirming that her money had been paid to Kennedy by the city.

Sl\e made her election to sue Kennedy and obtained against him a judgment for the amount paid by the city to him, and by such action ratified that payment by the city as a payment on her account

We think, therefore, that plaintiff upon the facts proved was not entitled to recover, and that the exceptions must be sustained and a new trial ordered, with costs to defendant to abide the event

Daniels, J., concurs in the conclusion.  