
    Devlin v. Mayor, Etc., of City of New York.
    
      (Supreme Court, General Term, First Department.
    
    April 17, 1891.)
    Eminent Domain—Compensation—Delay in Payment.
    Plaintiff was awarded §61,500 damages for condemned property, payment of which was delayed by the city for three months by reason of her failure to tender satisfaction pieces of mortgages existing on the property. These she presented after three months, and received payment of the principal of the award, protesting, however, against the non-payment of interest thereon. Held that, by accepting the principal, she forfeited her right to recover interest, without regard to her protest, which is ineffectual to preserve such right.
    Appeal from circuit.court, New York county.
    Action by Margaret Devlin against the mayor, aldermen, and commonalty of New York city, to recover interest on an award of $61,500 damages to the plaintiff upon condemnation of her property. There was a judgment for the plaintiff, and the defendant appeals.
    Argued before Van Brunt, P. J., and Daniels, J.
    
      Wm. H. Clark, (Theodore Connolly, of counsel,) for appellant. Souther & Stedman, (Charles Edward Souther, of counsel,) for respondent.
   Van Brunt, P. J.

On the 5th of July, 1889, there was awarded to the plaintiff, in proceedings to condemn certain property for school purposes for certain lots owned by her, the sum of $61,500. At this time said lots were mortgages for various sums. Ho satisfaction pieces of these mortgages were delivered or tendered to the comptroller prior to the 20th of September, 1889, although it is claimed that demands for the payment of this award were made prior to that time. On said last-mentioned date satisfaction pieces of the mortgages and a quitclaim deed of the premises were delivered to the comptroller, and upon such delivery the comptroller gave a warrant for the face of the award, payable to the order of the plaintiff. At the time of the receipt of this warrant, and of the delivery of the quitclaim deed and satisfaction pieces, the plaintiff filed a paper with the comptroller, stating that the same were delivered under protest, and with the distinct understanding that all rights were reserved on behalf of the owner and the mortgagees for the recovery of interest upon the amount of the award from the date of its confirmation. Thereupon this action was brought to recover said interest, and upon the foregoing facts the court directed a verdict for said interest; with.interest from the 20th September, 1889; and from the judgment thereupon entered this appeal is taken. It seems to us that the acceptance of the principal by the plaintiff prevents an action for the recovery of interest. If the plaintiff meant to demand the interest, she ought not to have received the principal. The fact that she protested against the denial of the interest can have no effect, because, in face of the fact of receiving the principal, a protest against the refusal of the defendant to pay interest is of no consequence. Since the year 1794 it has been the rule that, where the principal has been paid, there can be no recovery of interest. Dixon v. Parkes, I Esp. 110. This rule has been repeatedly recognized in the courts of this state, notably in the cases of Cutter v. Mayor, 92 N. Y. 166, and Hamilton v. Van Rensselaer, 48 N. Y. 244, and the cases therein cited. If it is said that the case of Cutter v. Mayor is no authority, because of the form of the receipt, it is to be observed that all that the receipt did was to receipt in full an account simply showing the amount of the award, without anything in reference to the interest at all; the receipt being “in full payment of the above account.” Therefore the use of the words “in full payment” only referred to the amount received, and liad nothing to do with the disputed item of interest. It is evident that, under the acts under which these proceedings were taken, the interest is given as damages for non-payment or detention of the amount awarded, and does not constitute a debt capable of a distinct claim, precisely the same as was held in the case of Cutter v. Mayor. We think, therefore, under the principles laid down in the cases cited, that the plaintiff having received the principal, although she did protest against accepting, yet notwithstanding such protest having accepted, she cannot now recover that which was a mere incident of the award, namely, the interest for the detention of the same. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

Daniels, J.,

(concurring.) The plaintiff had no right to receive the award until the incumbrances on her property were discharged. Then for the first time the money was due to her, and then it was paid. There being no default in payment on the part of the city, the plaintiff was not entitled to interest. For this reason, also, I agree to the reversal of the judgment, and the direction for a new trial.  