
    Harry Carpenter, Respondent and Appellant, v. The City of New York, Appellant and Respondent, Impleaded with Others.
    
      Sminent domain in tlie city of New York — date to which interest, on taxes and water rates m&y he cha/rg'ed and deducted/from an award—date to Which the obligation to p'ay interest o?i mortgages runs.
    
    The city of New York may deduct from an award made in condemnation proceedings, instituted under chapter 746 of the Laws of 1894, taxes and water-rates which Were liens upon the land at the time the city toóktitlej together with interest thereon to the day when the award became -payable.
    
      Mortgagees of the premises taken are only entitled to interest on their mortgages to the day when the award became payable.
    
      Setnble, that if the city, upon a proper demand, refuses to pay the award when it becomes payable, the mortgagees are entitled to interest subsequently accruing upon the amount due to them.
    Cross-appeals by the plaintiff, Harry Carpenter, and by the défendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12tli day of April, 1900, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Henry G. Atwater, for the plaintiff.
    
      George Landon, for the defendant, The City of New York.
   McLaughlin, J.:

This action was brought to- compel the payment by the city of New York of an award for damages sustained by the taking of certain lands for a public park under chapter 746 of the Laws of 1894.

The facts are not disputed, the only question presented being one of law. There have been two trials. Upon the first trial two questions were litigated: (1) Whether the city was entitled to retain, out of the award made, the amount of taxes and water rents which were liens upon the land at the time the title was acquired by the city, and (2) whether a sufficient demand had been made by the persons entitled to the award to render the city liable for interest on the amount of the award.

The trial court held that the city had no right to deduct from the amount of the award the taxes and -water rents, and that a sufficient demand had been made to render the city liable for interest. On appeal, however, the judgment was reversed (44 App. Div. 230), this court holding that the city was only liable for the amount of the award without interest, and that it had the right to retain out of the awaM the amount of taxes and water rents assessed upon or standing against the land at the time it acquired the title. These two questions are again presented on this appeal, but it is unnecessary to consider them, since each was effectually disposed of by our ' former decision. On the second trial, two additional questions,were raised: (1) 'Whether the city was entitled to interest on the amount of the taxes and water rents to the day of trial or only to the day when the award became payable, and (2)’ whether the several persons holding mortgages upon the land at the time the city ■acquired title to it were entitled to interest'on the amount due on the mortgages, payable out of the award to the day of trial or only to the- day when the award became payable. The trial court Held, •as to the former question, that the city was entitled to interest to the day of trial, and as to the latter, that the mortgagees were entitled to interest only to the day when the award became payable. From this judgment both have appealed.

W e are of the opinion that the learned trial court was correct in holding that .the mortgagees were entitled .to interest, .only to the day when the award became payable, but that it erred in holding that the city was entitled to interest upon the taxes and water rents.to the day of trial. If the city was not liable to pay interest on. the award to the day of trial, it having taken the land for which the award was made, it is difficult to see upon what principle of law it could be held that it was entitled to deduct from the award interest, upon the taxes and' water rents. , It is unquestionably true that the •taxes' and water rents were a first lien upon the land, but that has nothing to do with the question.' The mortgages were also liens upon the land, and assuming . that the award was sufficient to pay all of the liens, why should one draw interest- any mpre than the other ? ' Interest is allowed either (T) by agreement of the parties ;. (2) by force of some statute, or (3) under the common law by way of damages for the- non-payment of a debt or principal Sum. Here, there, was no agreement between the parties. that the city should have interest; our attention has not been called to any statute, which entitled it to interest; and it certainly cannot be said to have sustained any damage by- reason of the non-payment of the taxes, and water rents after it acquired the title to the land, because it not. only took and went into possession of the land, but it kept the money which the court had directed it to pay — as a condition of its acquiring the title — to the legal and equitable owners of the land. ' The city could, at. any time ...after the award became payable, have deducted from it the amount of the taxes and water rents, and, manifestly, under such circumstances, it was not thereafter entitled, as against other parties in' interest, to the interest on the taxes and water rents.

As to the interest upon the mortgages, the trial court was right in holding that the owners were not entitled to interest beyond the day when the award became payable. The city, under the statute, had the right to take the land for a public use. It, however, could only do so by paying to the owners, either legal or ■equitable, the value of their respective interests therein. ■ This the ■city in legal effect did when the award which was made became payable, and at that time the persons who had a legal or equitable interest in the land became entitled to the money which had been awarded to them in satisfaction of their interests in the land. The lien which the mortgagees previously held upon the land did not attach to this award; they became part owners thereof. (Hill v. Wine, 35 App. Div. 520.) When the award became payable, that moment interest stopped, because it was given in satisfaction of their lien — unless, upon a proper demand, the city refused to pay. Here a proper demand was not made at or after the award became payable, arid as we held on the former appeal, the holders of the mortgages were riot thereafter entitled to interest on them.

The judgment .appealed from should, therefore, be modified to the extent of holding that the city is not entitled to interest on the taxes and water rents after the day the award became payable, and as thus modified the judgment should be affirmed, without costs to ■either party.' ....

Patterson, Rtjmsev, Ingraham and Hatch, JJ., concurred:

Judgment modified as directed in opinion, and as modified affirmed, without .costs to either party.  