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In re Block Bounded by Avenue a & First Avenue, Fifty-Ninth, & Sixtieth Sts., in City of New York

Supreme Court of New York, Appellate Division

July 7, 1911

In the Matter of Acquiring Title by the CITY OF NEW YORK to Certain Lands and Premises Situated in the Block Bounded by Avenue A and First Avenue, Fifty-ninth and Sixtieth Streets, and in the Block Bounded by First and Second Avenues, Fifty-ninth and Sixtieth Streets, in the Borough of Manhattan, etc. In the Matter of the Application of JOHN T. MURPHY, Appellant, for an Order Authorizing and Directing the Comptroller of the City of New York to Pay over the Balance of an Award in this Proceeding. REALTY PROTECTIVE COMPANY, Respondent.

Page 126

APPEAL by the petitioner, John T. Murphy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1911, denying the petitioner's motion for an order authorizing and directing the comptroller of the city of New York to pay over to him the balance of an award in condemnation proceedings.

COUNSEL

Lorenzo D. Armstrong of counsel [Garvan & Armstrong, attorneys], for the appellant.

Isidor Wels of counsel [Moss, Laimbeer, Marcus & Wels, attorneys], for the respondent.

CLARKE, J.:

The moving affidavit avers that prior to February 1, 1907, William H. Murphy was seized in fee of 316 East Sixtieth street taken by the city in condemnation proceedings; that an award was made of $27,000 for the property, title whereof vested in the city February 1, 1907; that the report was confirmed and that the city is indebted to William H. Murphy as said owner of such lands in the sum of $27,000 with legal interest from February 1, 1907, to the date of payment; that on February 14, 1911, the comptroller gave notice of the readiness and desire of the city to pay and that the amount thereof was $33,538.50; that on February 16, 1911, an alleged notice of lien was filed in the office of the comptroller by the Realty Protective Company; that thereafter on April 3, 1911, the comptroller paid the said William H. Murphy $30,632.32, but retained on account of the filing of said alleged notice of lien $2,906.18, which now remains in his hands; that deponent had been informed by James N. Butterly, president of the Realty Protective Company, that the aforesaid alleged claim of lien against the said award is based on a certain contract in writing between William H. Murphy and the Realty Protective

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Company, a copy of which is attached; that the said company has no interest in, assignment of or lien upon any portion of said award; upon information and belief, the said Realty Protective Company was and is now a corporation organized and existing under the laws of New York and that the said corporation is and has been attempting to practice law and to act as attorney and counselor at law in actions pending in the Supreme Court; that on or about the 4th of April, 1911, said William H. Murphy for good and valuable consideration duly assigned to John T. Murphy, the applicant, by instrument in writing all his interest to the aforesaid $2,906.18 and said assignment is now on file in the office of the comptroller.

The contract alluded to, upon which the realty company claims, is as follows:

'NEW YORK, Feb'y 8, 1907.

'THE REALTY PROTECTIVE COMPANY:

'You are hereby authorized to proceed in the matter of my claim for damages by reason of the opening of the approaches to the Blackwell's Island Bridge, as the same affects my premises No. 316 East 60th Street; and in consideration of your services I hereby agree to pay you a sum equal to fifty per cent of any excess of award made to me over and above the sum of Thirty thousand dollars for the taking of the said premises. Said Thirty thousand dollars out of the moneys to be paid for the taking of the said premises to be saved harmless to me from the aforesaid fees.

'WILLIAM N. MURPHY.

...

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