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In re Board of Water Com'rs of Village of White Plains

Supreme Court of New York, Appellate Division

April 30, 1909

IN RE BOARD OF WATER COM'RS OF VILLAGE OF WHITE PLAINS.

Appeal from Special Term, Westchester County.

In the matter of the application and petition of the Board of Water Commissioners of the Village of White Plains to acquire the property of a waterworks company. From an order confirming an award of damages, petitioner appeals. Modified and affirmed.

W. N. Dykman, for appellant.

Louis Marshall, for respondent Westchester County Waterworks Co.

Charles Haldane (David McClure, on the brief), for respondent Farmers' Loan & Trust Co.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

JENKS, J.

This appeal is taken by the plaintiff and petitioner from an order of the Special Term to raise the questions of interest upon an award in proceedings by the village of White Plains to condemn [116 N.Y.S. 496] the real property of a waterworks company, and of the additional allowance. The first award of the commissioners, made in 1898 and confirmed by the Special Term on September 1, 1898, was $103,298. The order of confirmation provided that the plaintiff and petitioner pay such award to the said owner and certain lienors thereof, or deposit with the county treasurer of Westchester county the said sum to the credit of the said owner and its lienors, subject to the further order of the court, and upon such payment or deposit the plaintiff and petitioner was authorized to enter and to take possession of the property. The petitioner, on or prior to September 1, 1898, offered to pay the award to the said owner, which was refused, and thereupon and on said day deposited the said award, and also $5,164.90, the additional allowance, with the said county treasurer to the credit of the proceedings and in accord with the said order of the Special Term, where said sums have remained on deposit.

As the final result of two appeals taken by the owner and a holder of a trust mortgage upon the property, a second award was made by a new commission and has been confirmed by the Special Term. The second commission reported that the compensation should be $229,725, explicitly stated by it to be constituted of $150,000 for the property and of $79,725 interest thereon from September 1, 1898, the date when plaintiff and petitioner took possession of the property, to the date of the report. The plaintiff and petitioner moved to set aside the report in so far as it awarded interest and an additional allowance of 5 per cent. upon this award. The lienor trust company moved for confirmation; but the owner objected thereto that the award was unjust, inadequate, and illegal. The Special Term overruled all objections, and made the order of absolute confirmation now appealed from by the plaintiff and petitioner, excepting as it confirms the report as to the value of the property and the allowance of interest on the difference between the first and the second awards from September 1, 1898.

As such interest was not provided for by contract, express or implied, or by statute, the defendants' right thereto must arise from a default on the part of the plaintiff. Matter of Trustees, 137 N.Y. 95, 32 N.E. 1054.The statute (section 3371, Code Civ. Proc.) provides that:

" If the report is confirmed, the court shall enter a final order in the proceeding, directing that compensation shall be made to the owners," and upon payment thereof " the plaintiff shall be entitled to enter into the possession of the property condemned, and take and hold it for the public use specified in the judgment."

And the same section provides that:

" Deposit of the money to the credit of, or payable to the order of the owner, pursuant to the direction of the court, shall be deemed a payment within the provisions of this title."

Aside from the tender or offer of payment, this deposit made satisfied the constitutional provision as to just compensation. Matter of N.Y. Cent. & H. R. R. R. Co., 60 N.Y. 116.In that case the court, per Rapallo, J., say:

[116 N.Y.S. 497] " It is further objected that the order of confirmation is in violation of the constitutional provision against taking private property for public use without just compensation, inasmuch as it does not direct the compensation to be paid to the party claiming to own the land, but to the deposited in bank subject to the order of the court. We do not think this objection tenable. The money, when deposited, becomes, in law, the property of the parties entitled to the compensation. Their land is converted into money; but there may be conflicting claimants of the fund, and the intervention of the court may be necessary for its distribution, or for the adjustment of liens, etc. The fund is subject to the same claims to which the land was before being taken. The railroad act (Laws 1890, p. 1091, c. 565) declares (section 19) that if there are adverse and conflicting claimants to the money, or any part of it, the court may direct it to be paid into court by the company, and may determine who is entitled to the same, and direct to whom the same shall be paid. This statute has been in active operation for nearly a quarter of a century, and we have never before heard of the constitutionality of this provision being questioned; nor is ...


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