
    Delap v. City of Brooklyn.
    (City Court of Brooklyn
    General Term,
    February, 1893.)
    In an action to recover the amount of an award made for the taking of land by defendant under chapter 859 of the Laws of 1871, passed April 19, 1871, and commonly known as the “ act for the widening of North Second street, Brooklyn,” it appeared that on and prior to February 6, 1871, M., being the owner of a lot in that city, mortgaged the same on that day to one D. In 1876, said lot was sold under foreclosure and purchased by plaintiff, who has ever since been the owner thereof. After the passage of said act, such proceedings were had thereunder that commissioners were duly appointed to ascertain and report the damages sustained by property owners by reason of the taking of the lands for street purposes. The report of the said commissioners made an'award to M. as owner, as damages for the taking of a piece of his property. It was admitted that no person other than plaintiff had ever demanded payment of the award in question. Held, that when the lot was sold under foreclosure, the mortgagors were deprived of all claim to the award, and that it passed to plaintiff as purchaser at the foreclosure sale and that he was entitled to recover the same.
    
      Held, also, that the law as to the disposition of awards made for lands taken for public purposes as between owner and mortgagee, has slight application to the rights of parties under the act in question.
    Appeal from a judgment in favor of plaintiff, entered upon the trial before a judge without a jury,
    
      Jackson da Burr (Joseph A. Burr, Jr., of counsel), for plaintiff (respondent).
    
      Ahmet F. Jenks, Corporation Counsel, for defendant (appellant).
   Osborne, J.

This action was brought to recover the amount of an award made for the talcing of land by the city of Brooklyn, under chapter 559 of the Laws of 1871 (passed April 19, 1871), and commonly known as the “ act for the widening of North Second street.” Plaintiff had judgment below, and this appeal is taken from said judgment.

Plaintiff’s claim arises under the following circumstances: On and prior to February 0, 1871, John J. McCabe and Edward A. McCabe were the owners of a lot on North Second street, and on that date they mortgaged said lot to one Delaplaine, to secure the payment of $1,500. In September, 1875, an action was commenced to foreclose said mortgage, which resulted in a judgment of foreclosure and sale on February 8, 1870, and thereafter, and on March 10,1870, the said lot, as a whole, was purchased by the plaintiff, who has ever since remained the owner thereof, and has paid the taxes annually levied on the whole of said lot by the city.

After the passage of said act, such proceedings were had thereunder that commissioners were only appointed to ascertain and report the damages sustained by the property owners by reason of the taking of the land for such widening, and the report of the commissioners was confirmed by the Supreme Court on November 9, 1870. From that report it appears that a strip of about fourteen feet in depth was taken off the front of said lot, and an award was made to John J. McCabe and Edward A. McCabe, as owners, of the sum of $1,000, as damages for such taking.

In the case of Engelhardt v. City of Brooklyn, 44 N. Y. St. Repr. 474, which was also a case arising under the act for the widening of North Second street, we laid down the principles which, in our opinion, governed actions of a similar character to the one now before us. We there held that a mortgage by the owner of a lot taken for such widening, made subsequent to the passage of said act, amounted to an equitable assignment of the award to the mortgagee, and that on a foreclosure of such mortgage, the purchaser at the foreclosure sale was entitled to the award. This case presents a much stronger claim in favor of the plaintiff, for here the mortgage Avas made prior to the passage of the act, and the foreclosure and sale thereunder was had prior to the filing of the commissioners’ report. The plaintiff, as purchaser under the foreclosure of the mortgage, acquired all the interest and estate of the mortgagees as it existed at the time of making the mortgage. Rector, etc., v. Mack, 93 N. Y. 488; Batterman v. Albright, 122 id. 484.

In Donnelly v. City of Brooklyn, 121 N. Y. 9, referring to said act, the Court of Appeals says: “ The effect of the act is to condemn the land for the purposes of the improvement provided for, and to authorize the city to appropriate such land to such purposes, subject to the obligation on its part of making compensation therefor, as provided by the act.” The taking was constructive only, and for a period of about twelve years after the making of the commissioners’ report the city took no steps to pay the compensation awarded for the taking, nor did the property owners make any claim for the awards made. The city continued to tax the property éo constructively taken, and the owners remained in undisturbed possession.

Is is admitted on the part of the defendant, that no person, other than the plaintiff, has ever demanded payment of the award in question. We think that it is clear that when the lot was sold under foreclosure, the mortgagors were deprived of all claim to the award, and that it passed to the plaintiff as purchaser at the foreclosure sale, and that he is entitled to recover the same. The case of Home Ins. Co. v. Smith, 28 Hun, 296, relied on by the learned counsel for the appellant, is not in point, for in that case it appeared that the purchaser under the foreclosure sale bought the mortgaged premises “ subject to the proceedings theretofore had or then pending ” for the taking of the land the award for which was there in dispute. Indeed, it may well be remarked that the law generally laid down as to the disposition of awards made for lands taken for public purposes as between owner and mortgagee, has slight application to the rights of parties under the ¡North Second street widening act. As the Court of Appeals says in the Donnelly case, 121 N. Y. 9, “ the case is sui generis, and must be determined from a consideration of its peculiar character and circumstances.”

We think that the judgment should be affirmed, with costs.

Yau Wyck, J., concurs.

Judgment affirmed.  