
    Harry Carpenter, Respondent, v. The City of New York, Appellant, Impleaded with Miln P. Palmer, as Trustee under the Will of Francis B. Hegeman, Deceased, and Others.
    
      Eminent domain in New York city — taxes on the property should be deducted from the award — interest not chargeable where the amount demanded is too la/rge.
    
    Under chapter 746 of the Laws of 1894, authorizing the former city of New York to take lands for a public park, and providing that, the commissioners of estimate appointed in the proceeding shall “make a just and equitable estimate of the loss and damage to the respective owners, lessees, parties and persons respectively entitled to or interested in the said lands,” and that “ such report, when confirmed, * * * shall be final and conclusive as well upon the- said mayor, aldermen and commonalty of the city of New York as upon the owners, lessees,, persons and parties interested in and entitled unto the lands, * * * and also upon all other persons whomsoever,” where the commissioners make a report that “ the sums of money awarded * * * to the respective owners, lessees, parties and persons in interest [are] for the loss and damage respeo-. tively sustained by them by reason of the taking of said lands,” the city of New York is entitled to deduct from the award taxes which were a lien against-the property for which the award was made.
    A demand for the entire amount of the award, without any deduction for taxes, being for a sum in excess of that to which the parties were entitled, does riot render the city liable for interest under section 4 of the statute.
    Appeal by the defendant, The City of New York, from a judg- ' pient of the Supreme Court in favor of the plaintiff and the. several Co-defendants, entered in the office of the clerk of the county of New York on the 8th day of May, 1899, upon the decision of the court rendered after a trial at the- New York Special Term'.
    
      
      Theodore Connoly, for the appellant.
    
      Henry G. Atwater, for the respondent Carpenter.
    
      Abraham Nelson, for the respondents Hartfield and Davis.
   O’Brien, J.:

The action is to recover an award as compensation for the city’s taking certain land by virtue of chapter 746, Laws of 1894, for a public park in the twelfth ward. The commissioners of estimate reported the sums of money awarded * * * to the respective owners, lessees, parties and persons in interest [are] for the loss and damage respectively sustained by them by reason of the taking of said lands,” naming the sum of $27,200 to J. H. Jewell as assignee for the benefit of creditors, subject to various mortgages unpaid, which were specified. The report was confirmed December 30, 1897, and by statute, four months thereafter was allowed to the city for payment of the awards.

On April 30, 1898, a demand-for payment of the sum of $27,200 was made in behalf of Thomas C. Campbell as substituted assignee of J. H. Jewel'l for the benefit of creditors, which demand remained uncomjfiied with until this action was brought. At the trial it was admitted, also, that a demand for the payment of the. amounts respectively due them under mortgages were made by M. P. Palmer, Nanette Hartfield, Abraham Nelson and Tillie Davis, defendants, on April 30, 1898.

The plaintiff in this action is the holder of one of the mortgages subject to which the award was made, and he attempts to get a judgment whereby the amount of the awards should he distributed. The city presented two defenses: First, that the demand of Campbell was invalid, and, therefore, not such a demand as would charge the city with interest, its invalidity being that the sum demanded was far in excess of the amount due him; and, second, that the city had a lien on the award for taxes and water rates unpaid, dating back to 1893, and amounting*with interest to March 22, 1899, to the sum of $1,698.30.

• Upon the trial evidence was offered to substantiate Campbell’s claim in the shape of the order of the Supreme Court appointing him as substituted assignee, together with proof of the execution and filing of his bond as assignee.

The court below held that the taxes should not be allowed, and that the demand of April thirtieth was sufficient to charge the city with interest therefrom.

The questions presented upon this appeal, therefore, are whether the city was entitled to retain out of the award the amount of taxes and water rates standing against the property at the time title was acquired,' and whether any demand of payment of the award had been made sufficient to start the running of interest against the city.

Upon the first question as stated, the evidence shows that, when the city acquired title to the property, the unpaid taxes and water rates, with interest thereon till March 22, 1899, amounted to $1,698.30. That this was a first lien and that the municipality had a right to enforce it against the property were not disputed. It is insisted, because the act under which the proceeding was conducted required that the amount of damages which the persons respectively' interested therein suffered should be ascertained, and as nothing was said- or appeared in the report upon the subject of taxes, that, therefore, the city was not entitled to deduct them. In other words, the position is that the form of the report and its entry fixing the awards are conclusive and cannot be assailed collaterally.

We think that a consideration of the nature and the character of awards made for the property taken will dispose of "this contention. It is true the statute provides for the appointment of commissioners, who are to proceed “ to make a just and equitable estimate of the loss and damage to the respective owners, lessees, parties and persons respectively entitled to or interested in the said lands,” and further provides that such report, when confirmed * * * shall be final and conclusive as well upon the said mayor, aldermen and commonalty of the city of New York as upon the - owners, lessees, persons and .parties interested in and entitled unto'the lands * * * and also upon all other persons whomsoever.”- (Laws of 1894, chap. 746, § 2.) The words “final and conclusive” liave reference to tlie amount of the award, but it has never been held that they extend to the interests or ownership in the award. And while the language requires the commissioners to ascertain the loss and damage,” the first step, in the proceeding in that direction is to determine the fair market value of the property -taken, which is the foundation of the compensation or amount of damage. That this Tule in some cases must be supplemented by additional circumstances is shown in Matter of The Mayor (41 App. Div. 281). In the present proceeding, in making the award of $27,200, the •commissioners in effect fixed that sum as the fair market value ■of the premises taken, and it was their duty to apportion that .amount among those interested in the property. In The Matter of the Opening of Eleventh Avenue (81 N. Y. 436) it was held that ■¡the report of the commissioners in a similar proceeding divested the title of all parties to the land and substituted the awards in the place •thereof, and whoever had an estate or interest in the land was entitled to its proportionate value as then existing.

The effect, therefore, of the confirmation of the report is to vest title in the city freed from any lien; and such liens as existed at the time of the confirmation are transferred from the land to the award made therefor, the money taking the place of the land.

In conflict with the authority relied upon by the court oeiow of Farrington v. The Mayor (83 Hun, 124) to support the proposition that, as to the persons entitled to the land, the report is final and ■conclusive, we have the cases of Spears v. The Mayor (87 N. Y. 373) and Cassidy v. The Mayor (62 Hun, 358). It is, however, manifestly just that out of the award which represents the fair market value of the property taken, the city, holding a first lien for taxes, should be paid, and a contrary ruling should not be made ■except by force of some statute or binding authority. We think there is nothing in the language of the statute relating tó condemnation of property for park purposes which would preclude the city ■from asserting its right to deduct the taxes before paying the award, nor have we been referred to any decision directly holding that after the confirmation of the report of the commissioners a person having an interest in the fund which has been substituted in place of the land was not entitled to be paid. Our conclusion, therefore, is that the court below erred in not allowing the city to deduct the taxes from the amount of the award.

As we have reached the conclusion that the city was entitled to deduct the taxes, it is evident, apart from the question whether the demand was made by the proper persons, that the amount demanded was larger than the parties were entitled to receive. It is conceded that, had a valid demand been filed on April 30,1898, the city thereafter would have been liable for interest on the award pursuant to section 4, chapter 746, Laws of 1894.

The answer of the city states that on or about the 30th day of April, 1898, a demand was duly filed with the comptroller of the-city of New York on behalf of the defendant Thomas C. Campbell, as substituted assignee (in place of John H. Jewell), for the payment of the sum of $27,200; * * * that said demand was for a sum far in excess of the amount due to said Jewell or his substituted assignee inasmuch as the said award was made subject to the various-mortgages hereinbefore set forth and described.” Unless Campbell, as substituted assignee, was entitled -to receive the amount-demanded, the:refusal of the city to pay that. amount would not start the interest running.

In Cutter v. Mayor (92 N. Y. 166) it was said : “ Where, however, a demand is necessary as a foundation for a claim of interest, it must be a distinct demand for the sum of money to which the party is then entitled, It is not enough that by some change in circumstances, brought about by his own act or the act of others, he may become entitled to it. Here the demand included more than the .plaintiffs could justly claim, for, until discharged of record, the amount of the mortgage debt was to be withheld.”

Though we should conclude that Campbell, either alone or in connection with the separate mortgages, was the proper party to„make the demand, the fact remains that the sum asked for was in excess-of that to which the parties were entitled, and the demand was,, therefore, properly refused:

The judgment accordingly should be reversed, and, as . the facts are not disputed, but present simply questions of law, there shotild, upon both questions, be a judgment in favor of the city, with costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, and judgment ordered in favor of the city,, with costs.  