
    Margaret Devlin, App’lt, v. The Mayor, etc., of New York, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed February 9, 1892.)
    1. Eminent domain—Award—Interest—Laws 1888, chap. 191, § 4.
    Under chap. 191, Laws 1888, where property is taken for school purposes Ihere is no way to prevent the running of interest as part of the . award during the four momhs provided for by the statute except by paying or tendering the award and interest to the time of payment or tender. After the expiration of the four months the interest depends upon demand.
    2. Same—Mortgagees.
    Where there are mortgages upon the land taken the commissioners may make their awards to mortgagees for the amount due on their mortgages, and to the owner for the balance, or they should tender the owner the amount of the award and interest upon condition of receiving a satisfaction of the mortgages.
    
      Appeal from judgment of the supreme court, general term, first department, reversing judgment for plaintiff entered after trial at circuit.
    
      Charles Edward Souther, for app’lt; D. J. Dean, for resp’t.
    
      
       Reversing 37 St. Rep., 951.
    
   Peckham, J.

The award made by the commissioners to estimate the damages to the ¡fiaintiff as owner for land taken, was confirmed on the 5th of "Juty, 1889, and on the 20th of the following September the city comptroller paid to the owner of the land the amount of such award, without interest. The owner received the same under protest and claimed interest from the date of confirmation to the date of payment. The question is whether the plaintiff is entitled to such interest.

The provisions regarding interest, which are found in the 4th section of chap. 191, of the Laws of 1888, providing for the acquisition of sites for school purposes in New York city, are somewhat ambiguous and confusing, yet upon a careful reading we think they can be reconciled. As soon as the report of the commissioners to estimate damages is confirmed by the court, § 3 of the act enacts that the Mayor, etc., shall become and be seized in fee of the lands included in the report, the same to be used for the purposes already stated in the act. From that moment therefore the city becomes the owner of the lands and the former owner becomes at once entitled to his just compensation for the Lands thus taken. That compensation by this statute consists in the amount allowed by the commissioners with interest from the date of the confirmation of the report. This interest is part of the compensation which the statute itself provides shall be paid to the owners for their lands, and is not in any sense damages for the failure to pay. In this respect the statute differs from that referred to in Cutter v. The Mayor, etc., 92 N. Y., 166, for in the case cited the statute provided for tíre payment to the owners, within four months from the confirmation of the report, of the amount of the sum reported by the commissioners, or in case of neglect or default for such time, the owner after application for payment might sue for and recover the sum reported, “withlawful interest from and after the said application therefor.” The statute referred to does not provide for the payment of interest as any part of the compensation for the land taken, because it allows the city four months in which it has the right to pay the sum awarded simply, and without any interest whatever. The interest which is given thereafter is allowed by way of damages for the default and runs only from the time of a demand.

Under this statute of 1888, if the money be paid within the four months, the owner need not particularly demand interest on the award in order to entitle him to it. It is due from the city as much as any part of the award, for, in substance, the interest is part thereof.

The statute, however, makes provision for a possible default of the city, and a neglect on its part to pay during the four months, and in that case we construe the statute as meaning that upon such expiration of four months the owner may sue for and recover the amount of the award, with lawful interest added thereto for the four months during which the city should have paid, and interest on that total sum from the time of a demand therefor. The interest on the award for four months after the confirmation is added to the sum of the award, because the statute, in effect, makes it part thereof, and the total becomes the amount of the award then due. The owner, at any time after the expiration of the four months, may make a demand and then commence his action to recover the amount due, and he can recover the same, with interest from the time of the demand. We think this recom ciles the seemingly contradictory features of the statute as to the payment of interest from the time of the confirmation of the report and interest from the time of the demand. There is no way to prevent the running of interest as part of the award during the four months provided for by the statute, excepting to pay or tender the award and the interest to the time of- payment or tender. If the owner do not present himself during these four months, the city authorities, if they desire to stop the interest, must seek the owner and pay or tender him the amount and interest up to that time. After the expiration of the four months the interest depends upon demand.

The payment of the amount awarded by the commissioners within the four months, and without interest, does not, therefore, prevent the plaintiff from claiming the interest for that time. The plaintiff did not receive the amount paid as in full of her claim, but, on the contrary, claimed the interest and protested against its non-payment.

It is said the city was not in default for not paying while the owner allowed the mortgages to exist unsatisfied upon the premises. It is not a question of default during these four months. The statute is express and clear; the interest must be ¿paid on the amount of the award from the time of confirmation.

• The commissioners might have made their awards to the mortgagees for the amounts due on their mortgages, and to the owner for the balance. As it was, the city should at least have tendered the owner the amount of the award and interest upon condition of receiving a satisfaction of the mortgages. This was not done, and we think when the money was paid in September, and within the four months, the city should have included in such payment the interest on the award up to that time.

Whether interest upon this unpaid interest could be recovered between the time of the payment of the amount awarded by the commissioners and the nineteenth of December following, when a demand was made, is somewhat doubtful, but that question was not argued and the amount is but trifling.

We think the special term was right, and for that reason the order of the general term must be reversed and the judgment of the special term affirmed, with costs in all courts.

All concur.  