
    In the Matter of Acquiring Title to an Unnamed Street Running Parallel to Broadway about Two Hundred Feet Westerly Therefrom, Commencing at West One Hundred and Eighty-first Street and Ending on the Westerly Side of Broadway, Borough of Manhattan, City of New York. In the Matter of the Application of William H. Fischer and Others, as Executors of and Trustees under the Will of Benedickt Fischer, Deceased, for an Order or Mandate in Conformity with Section 1001 of Greater New York Charter. William H. Fischer and Others, as Executors and Trustees, etc., Respondents; The Comptroller of the City of New York, Appellant.
    First Department,
    March 8, 1912.
    Mew York city — street opening — section 1007, Greater Mew York charter, construed — assessment against and award to same party— offset — interest on award.
    Section 1007 of the Greater New York charter, as to the award of damages and benefits resulting from the opening of streets, specifically confers upon the landowner the right to extinguish, without interest, an assessment for benefits to the extent that an award has been made for damages. It contemplates that there shall be, without action upon the part of the landowner, an application of the award for damages towards the payment of the assessment for benefits, and that this application shall be made as of the date when the assessment becomes payable; that one shall be offset against the other.
    Hence, where an assessment for benefits to a landowner is in excess of an award to him for damages, he is not entitled to interest on the award - after the assessment for benefits becomes payable.
    The fact that a landowner, after the refusal of the comptroller to comply with his demand as to the payment of interest on his award after his assessment for benefits became payable, voluntarily paid the entire assessment for benefits, does not change the relation of the parties.
    Appeal by the Comptroller of 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 8th day of January, 1912, resettling an order entered in said clerk’s office on the 16th day of November, 1911, granting a peremptory writ of mandamus. '
    
      Joel J. Squier, for the appellant.
    
      Benjamin Trapnell, for the respondents.
   McLaughlin, J.:

The city of New York, in the above proceeding, acquired title on June 1, 1906, to certain lands for street purposes, and on October 5, 1910, the commissioners of estimate and assessment filed their report, which awarded the respondents $21,300 as damages for land taken, and $5,552.20, the interest thereon from the date the title vested in the city to the date of the report, amounting in all to $26,852.20. An assessment was imposed of $37,260.72 for benefits upon other lands of the respondents lying contiguous to that taken. On January 5, 1911, the report was confirmed by an order of the Supreme Court, and on January tenth the assessment for benefits became payable. On the thirty-first of January the respondents demanded payment of the award for damages, with interest thereon to date of payment, less liens thereon, by taxes, assessments or incumbrances, and on the eleventh of March following — the award for damages not having been paid in the meantime — they paid the assessment for benefits without interest and without deducting therefrom the award for damages. A few days later the comptroller offered to pay them the award for damages, with interest to January 10, 1911, the day when the assessment became payable. This they refused to accept, claiming they were entitled to interest to the date of payment. The comptroller declined to pay interest after January tenth, and they thereupon applied to the court for a peremptory writ of mandamus to compel him to pay the amount of the award, together with interest thereon to the date of payment. The application resulted in an order directing that the writ issue, and the comptroller appeals.

The sole question presented is whether the assessment for benefits being in excess of the award for damages the respondents were entitled to interest on the award after the assessment for benefits became payable. The answer to the question turns upon the construction to be put upon section 1007 of the Greater New York charter, which provides that “Whenever an estimate for loss and damage and an assessment for benefit and advantage shall be made by the commissioners of estimate and by the commissioner of assessment, relative to the same person or persons, no interest shall be demanded from such person or persons upon the amount assessed for the benefit and advantage except on the excess of the amount he is to pay over and above the amount he is to receive for or in consequence of any intervening time between the period fixed for the receipt of the amount of benefit and advantage and the payments of the amount of loss and damage.” (Laws of 1901, chap. 466, § 1007, as amd. by Laws of 1906, chap. 658.) •

This section specifically confers upon the landowner the right to extinguish, without interest, an assessment for benefits to the extent that an award has been made for damages; mother words, the section contemplates that there shall be, without action upon the part of the landowner, an application of the award for damages towards the payment of the assessment for benefits and that this application shall be made as of the date when the assessment becomes payable; that one shall be offset against the other.

In Matter of City of New York (Church Ave.) (91 App. Div. 553) the court held that where a demand was served on the comptroller for payment of an award it was insufficient to continue the interest running after the expiration of six months from the confirmation of the report (pursuant to section 1001 of the Greater New York charter) because it did not make allowance for an assessment against the claimant for benefits. The court said that the assessment was “a proper offset against the amount awarded as damages.”

This court, in Matter of Bankers Investing Co. (141 App. Div. 591), referring to the case just cited, said: “The learned Appellate Division in the Second Department in the case of Matter of City of N. Y. (Church Ave.) (supra) gave a very liberal interpretation of these statutory provisions in favor of the city by construing the statute as one for offsetting awards against assessments as of the date when the assessment was levied, and thereby limiting the liability of the city to the payment of interest on the balance of the award, if any, from that date. That construction produces a just result and should be accepted.”

Matter of Jackson Steinway Co. v. Prendergast (142 App. Div. 905) was affirmed upon the authority of Matter of Bankers Investing Co. {supra), the court saying: “We intend hereby to decide that the amount of the assessments without interest should be offset against the amount which was due for award on the date when the assessments became payable.”

Here the assessment for benefits, amounting to $31,260.12, became payable on the 10th of January, 1911, and there was then due the respondents as an award for damages, including interest to that time, $21,231.25, which latter sum, if the foregoing views be correct, should have been and in legal effect was offset against the former. This left due the city on the assessment for benefits $10,023.41, that is, the excess of the assessment for benefits over the award for damages. The comptroller, therefore, was justified in refusing to pay interest after that time.

Nor do I think the fact that the respondents, after the refusal of the comptroller to comply with their demand as to the payment of interest, voluntarily paid the entire assessment for benefits, in any respect changed the legal relation of the parties. When they paid the assessment they knew the award was deductible therefrom. They could not by a voluntary payment impose a legal obligation upon the city to pay interest on the award any more than an acceptance of the payment of the assessment by an official of the city could do so. It was an ingenious attempt, inasmuch as the assessment could be paid without interest, to obtain interest on the award, but a legal liability upon a municipal corporation cannot be imposed in this way.

My conclusion, therefore, is that the parties should be placed in precisely the same position that they would have been had the respondents paid their assessment as of the date when it became payable, less the amount of the award, and interest thereon to that time. If this be done, then it follows, the respondents having paid the entire assessment, that the order appealed from should be modified by striking out the provision as to the payment of fifty dollars costs and directing the comptroller to pay the amount of the award, with interest thereon to January 10, 1911, viz., $21,231.25, and as thus modified the same should be affirmed with ten dollars costs and disbursements to the appellant.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Order to be settled on notice.  