
    Henry F. Van Loan, Appellant, v. The City of New York, Respondent, Impleaded with Alward Manchester, Defendant.
    
      Judgment — when a receiver in supplementary proceedings based, thereon is entitled to an award for land upon which it is a lien, although the award is payable ten-years after the judgment is.docketed.
    
    January 3, 1891, a judgment was docketed which became a lien upon real estate-owned by the judgment debtor and situated in the city of New York. January 15, 1891, a receiver of the judgment debtor was appointed in proceedings supplementary to execution. December 11, 1900, such receiver resigned and a. new receiver was appointed in his place and stead. July 14, 1896, the city of New York instituted condemnation proceedings to acquire such land. The premises were condemned and an award was made to the judgment debtor, which was confirmed June 13, 1900. January 4, 1901, the comptroller of the city of New York paid to the substituted receiver the amount of the award.
    
      Held, that under the provisions of section 4 of chapter 820 of the Laws of 1887, the act governing the condemnation proceedings, the right of the receiver to-sue for the amount of the award was suspended for four months after the , making of the award, and that consequently the case came within the provision of section 1255 of the Code of Civil Procedure, to the effect that the time during which a judgment creditor is stayed by express provision of law from enforcing a judgment is not part of the ten years, to which the lien of the judgment upon the real property of the judgment debtor is limited.
    That, consequently, the payment of the award to the receiver was proper, although such payment was made more than ten years after the judgment had been docketed;
    That the lien of the j udgment was not destroyed by the conversion of the land into personal property, but was simply transferred to such personal property. IiAughlin, J., dissented.
    Appeal by the plaintiff, Henry F. Van Loan, from an interlocutory judgment of the Supreme Court in favor of the defendant, The -City of New York, entered in the office of the clerk of the county of New York on the 20th day of March, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the answer of the said defendant.
    
      William, I. Mathot, for the appellant.
    
      Francis J. Byrne, for the respondent.
   Patterson, J.:

The plaintiff was the owner, as tenant in common, of an undivided one-fourth part of certain real property described in the complaint herein. On the 14th of July, 1896, proceedings were instituted by the mayor, aldermen and commonalty of the city of New York, the predecessor of the present city of New York, to acquire title to lands and tenements in the eleventh ward of the city of New York for the purpose of a public park; and among the parcels of lands embraced in the proceedings was the property described in the complaint. An award was made to the plaintiff for his interest in the property, and it was confirmed on the 13th day of June, 1900. The plaintiff, claiming to be entitled to the award, after demand upon the comptroller, sued the city for the amount thereof. The defendant, the City of New York, in answering the complaint, set forth as a distinct defense that it had fully paid and discharged the award to Melvin Stephens, a receiver in supplementary proceedings of the property of the plaintiff. It also set forth in its answer that the plaintiff did not at the time of the demand have any right, title or interest in or to the award sued upon; that,on the 3d day of January, 1891, a judgment had been recovered and duly docketed upon personal service of the summons upon the plaintiff, which judgment was for the sum of $9,215.33 in favor of John Wheeler, trustee for Mary E. Palmer, an execution upon which judgment was duly issued to the sheriff and was returned unsatisfied; and on the 15th day of January, 1891, one Church was duly appointed receiver of the plaintiff in proceedings supplementary to execution; that Church qualified and remained receiver until December 11,1900, when he resigned and one Melvin Stephens was appointed in his place and stead as receiver in such supplementary proceedings; that Stephens qualified and filed his bond, and thereupon filed in the office of the comptroller a demand for the payment of the award. The city also alleges in its answer that at the time of the institution of the proceedings Van Loan was seized of the one-fourth interest of the property described in the complaint and for which the award now sued upon was made, and that by virtue of the orders of receivership Church, as receiver, and Stephens, as his successor, became and were as of the dates of their aforesaid orders of appointment, respectively vested of, in and to all the property, real and personal, which was of said judgment debtor, Van Loan, and situate within the county of New York at the time the supplementary proceedings were instituted. The plaintiff demurred to the matters thus set up in the answer of the city on the ground that they were insufficient in law upon the face thereof to constitute a defense to the action. The demurrer was overruled and the plaintiff appeals from the judgment entered thereupon.

The principal ground urged in support of the demurrer is that the lien of the judgment upon the real estate of ,the plaintiff or upon the award had expired by reason of the ten-year limitation contained in section 1251 of the Code of Civil Procedure, by which it is enacted that, except as otherwise specially prescribed by law, a judgment binds and is a charge upon, for ten years after the filing of the judgment roll, and no longer, the real property and chattels real in the county in which the judgment is docketed, which a judgment debtor has at the time of docketing the judgment or which he acquires at any time afterward and within the ten years. "Interpretation has been given to this provision of the Code of Civil Procedure as applied to a lien upon property in the hands of a receiver in supplementary proceedings. In Chadeayne v. Gwyer (83 App. Div. 403) it is said : “We think the fair construction of subdivision 1 of section 2468 of the Code limits the interest that the receiver takes to a right to possession as a means of satisfying the plaintiff’s judgment; that that right to possession is subject to a valid sale of the property under an execution regularly issued; that upon a sale under execution and delivery of a deed thereunder the right of possession of a receiver is terminated; and that at the end of the ten years from the docket of the judgment, when the judgment ceases to be a lien upon the property, whatever interest or right of possession was vested in the receiver is at an end.”

It is not open to doubt that the lien of the Wheeler judgment in this case upon the real estate of Van Loan or upon the award would have ceased at the expiration of ten years if other provisions of law are not to be taken into consideration as extending the lien. But it is provided by section 1255 of the Code of Civil Procedure that the time during which a judgment creditor is stayed by express provision of law from enforcing a judgment is not part of the ten years to which the lien of the judgment is limited. (See Matter of Holmes, 131 N. Y. 84.) The receiver here represents the judgment creditor. He was entitled to the possession of the real estate of the judgment debtor. The judgment was docketed on the 3d of January, 1891. The city paid the amount of the award to Stephens as receiver on the 4th day of January, 1901, only a day or two after the ten years. It is assumed that the ten years of the existence of the lien of the judgment would have expired at midnight on the 2d of January, 1901 (Aultman & Taylor Co. v. Syme, 163 N. Y. 60), but there is an express provision of law which continued it beyond the ten years. That provision is to be found in section 4 of chapter 320 of the Laws of 1887, which is an “ act to provide for the location, acquisition, construction and improvement of additional public parks in the city of New York,” and it enacts that the mayor, aldermen and commonalty of the city of New York shall, within four calendar months after the confirmation of the report of the commissioners of estimate, pay to the parties entitled thereto the respective sum or sums, estimated and reported in their favor respectively, with lawful interest from the date of confirmation, and in default thereof \ said persons or parties respectively, their heirs, etc., may sue for and recover the same with lawful interest from and after demand. By this provision the right of this receiver to sue for the award was suspended for four months, and during that period of four months, therefore, he was stayed by express provision of law from enforcing the lien of the judgment upon the award. That being so, the provision of section 1251 of the Code of Civil Procedure does not apply. These considerations distinguish the case at bar from Chadeayne v. Gwyer (supra).

It is contended, however, that the payment made by the city to the receiver of the amount of the award cannot be recognized because the award consists of money; that it is personal property and property acquired subsequently to the appointment of Church, the first receiver, and that the title of Stephens, as Church’s successor, related back to such property only as Church might have taken into his possession. That an award made for lands taken under proceedings in eminent domain is personal property is true. It is compensation for the land and if the right to compensation accrues to a decedent in his lifetime, it passes to his administrators or executors ; but if it accrues after his death, the right to it is in the heirs or devisees. (2 Lewis Em. Dora. [2d ed.] § 320.) In Matter of Seventh Avenue (59 App. Div. 177) it is said that it is well settled that “ an award is not land, and is only treated as land in equity when necessary to adjust the rights of the parties. An award is a claim or right personal to the owner of the land. It is personal property that passes at death to the personal representative and not to the heir.” (Citing King v. Mayor, etc., of New York, 102 N. Y. 171.) But at the same time, where land is taken for public use, the damages awarded take the place of the land in respect to all the rights and interests dependent upon and incident to it. (Utter v. Richmond, 112 N. Y. 613.)

The award made for the taking of the plaintiff’s real property in the proceedings mentioned in the pleadings herein remained subject to mortgage or judgment liens. The lien of the Wheeler judgment was not destroyed by the conversion of the land into personal property, but was transferred to that personal property, and that lien having been kept alive by virtue of the provisions of law above referred to, the receiver was entitled to the amount of the award at the time it was paid to him.

The demurrer was properly overruled, and the judgment appealed from should be affirmed, with costs.

O’Brien and Hatch, JJ., concurred; Laughlin, J., dissented

Laughlin, J. (dissenting):

Wheeler, as trustee, recovered judgment against plaintiff, who then owned the land for which the award was subsequently made. At the instance of the judgment creditor a receiver of the property of the judgment debtor was duly appointed. The real estate was not transferred to him, and consequently, as he only took title to the personal property then owned by the judgment debtor, he took no interest in the land or in the award thereafter substituted therefor, which then became personal property perhaps subject to the lien of the judgment. The receiver, however, did not take title to the judgment which belonged to the judgment creditor, nor was he the agent of the latter to receive the award in judgment. His powers and duties were regulated and prescribed by the Code of Civil Procedure, sections12432-2471. Payment to him, therefore, did not discharge the plaintiff’s lien.

Judgment affirmed, with costs.  