
    Henry K. S. Williams, Pl’ff, v. The Mayor, etc., of New York, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Taxes—Deed—Appbopeiation oe land by city.
    Plaintiff's bulkhead and wharfage rights were cut off by a city improvement in 1881. Subsequently, in 1890, he recovered judgment for its market value as of the day it was cut off, which provided that on receiving the amount thereof he should convey his bulkhead and rights to the city. Held, that the effect of the judgment was that the property had been taken by the city on that day; that after that time taxes were not assessable against the plaintiff, and that he was not obliged to pay the taxes levied between 1881 and 1890 in order to comply with the requirement of the judgment.
    Submission of case on facts agreed upon under § 1279 of the Code of Civil Procedure.
    
      William W. MacFarland, for pl’ff; Charles Blandy, for def’t
   Brady, J.

Annexed .hereto is the defendant’s statement of facts and of the question which this court is called upon to decide.

On May 1, 1881, the plaintiff owned a certain bulk-head and wharfage rights on the Horth river between Twenty-fifth and Twenty-sixth streets, which the defendants through the department of docks, acting under chap. 574 of the Laws of 1871, and for the purpose of carrying out a plan for the improvement of the water front of the city, wrongfully invaded and cut off.

Thereafter an agreed statement of the facts was submitted to this court on September 19, 1885, for the purpose of ascertaining what, if any, damages the plaintiff was entitled to in the premises ; and on or about the first Monday of October, 1885, an interlocutory judgment was entered, decreeing that the cutting off of the plaintiff’s rights was unlawful; that be was entitled to damages therefor, and it was referred to the late Hamilton Cole, Esq., to take proof .as to such damages.

Thereafter and on the 8th day of July, 1889, a final judgment was entered in the action after the report of Mr. Cole had been made and confirmed, by which final judgment the court decreed :

1. That the market value of the plaintiff's property on May 1, 1881, and of his riparian rights, etc., was $65,000.

2. That he was entitled to compensation and that the measure-of such compensation was the market value on May 1, 1881, with interest from that date at six per cent

After the costs had been taxed and the interest calculated a final judgment was entered as follows:

“Now on motion of MacFarland, Boardman & Platt, attorneys, for the plaintiff, it is ordered, adjudged and decreed that the plaintiff recover of the defendants the sum of $96,828.04 with $4,003.34 costs and disbursements, amounting together to the sum. of $100,83138.
“And. it is further ordered, adjudged and decreed that upon payment of said judgment, the mayor, aldermen and commonalty of the city of New York be entitled to all the plaintiff’s rights, title and interest in the property above described; and that upon receiving such payment the plaintiff is hereby required and directed to execute and deliver to said municipal corporation a good and sufficient bargain and sale deed, sufficient to convey and assure the same to it and to its successors and assigns forever.’’

On the 8th of July, 1890, the defendants paid the judgment in full; they paid $106,545.14, which was made up of the principal sum of $65,000, with interest and costs, and interest on the judgment from the date of the judgment on June 18, 1889, the latter-date being the day first appointed for payment of the judgment, and the plaintiff executed and delivered to the defendants the deed called for in the final judgment.

At the time of the delivery of the deed a question arose whether, under the terms of the judgment of the 8th of July,, 1889, the defendants were entitled to any other than a simple bargain and sale deed. It was claimed by the plaintiff that the-defendants were not, and by the latter insisted that they were, entitled to a full warranty deed.

A full warranty deed was, in fact, executed, but it was understood and agreed as a part of the submission that the mere fact of giving such warranty shall not determine the rights of the parties-upon this submission, but that the same shall be determined by the language of the final judgment of July 8, 1889.

At the time of the payment of the judgment a question of difference arose whether the plaintiff should bear and pay the sum of $674.45, that being the amount of taxes assessed against the property between May 1, 1881, the date of the trespass, and June 18, 1890, the date agreed upon for passing the title. No question arises as to the period from June 18, 1890, to July 8, 1890, when the judgment was actually paid.

Defendants claim that the plaintiff could not deliver to them the deed called for by the judgment, which means a title free and clear of all incumbrances, without paying these taxes. The plan-tiff claims that as said action had proceeded and been decided upon the theory that the defendants had destroyed plaintiff’s bulkhead, or appropriated the same to their own use, prior to the time that any of said taxes were assessed thereon, that the taxes were unlawful, and that the plaintiff could not justly be required to pay the same in order to carry out the provisions of said final judgment.

The simple question for decision by the court, therefore, upon this appeal is whether, under the circumstancs, the plaintiff, in order to comply with the provisions of the final judgment, was bound to bear and pay this $674.45, or whether the defendants should bear and pay the same.

It will have been observed that on the first of May, 1881, the property of the plaintiff was invaded and appropriated by the defendant, and in certain legal proceedings relative to such appropriation it was declared that he was entitled to the market value of his rights thus usurped as they existed on that day, with interest therefrom. The effect of such declaration was that the property had been taken by the city on that day. And having been taken and appropriated it seems to be clear beyond all possible dispute that no taxes could be assessable .against the plaintiff, from whom it was forcibly taken at that time, who never subsequently had possession of it in consequence, and who was not regarded by the defendant as the owner of the premises at the time they were ■taken. A mere statement of the proposition seems to bear its answer palpably written upon it.

For these reasons the plaintiff is entitled to such judgment as is provided for in the statement of facts agreed upon. Ordered accordingly.

Van Brunt, P. J., and Daniels, J., concur.  