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Morey v. State

Supreme Court of New York, Appellate Division

March 24, 1954

FRED M. MOREY et al., Respondents,
v.
STATE OF NEW YORK, Appellant. Claim No. 29959.

Page 563

APPEAL from a judgment in favor of claimants, entered February 19, 1953, upon a decision of the Court of Claims (LAMBIASE, J.).

COUNSEL

Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Richard H. Shepp of counsel), for appellant.

Norman J. Martin and David G. Fellows for respondents.

BERGAN, J.

Claimants are owners of land appropriated by the State for Thruway purposes. On November 25, 1949, an agent of the State and the claimants reached an agreement to settle the amount to be paid for the appropriation in the sum of $500 and the claimants signed in the State agent's presence a document entitled 'Agreement of Adjustment'.

This instrument recited that the claimants had 'agreed to accept the amount of compensation hereinafter mentioned in full adjustment' of their claim for the value of the property appropriated. It also recited expressly that the compensation was to be paid 'only upon such approval by the comptroller of the State of New York as is or may be required by law' and further that it was to be paid only on a certificate by the Attorney-General that claimants were legally entitled to the amount agreed upon. Claimants further agreed to execute all formal papers which the Attorney-General 'deems necessary' to authorize payment.

At the time claimants executed the agreement it had not been executed on behalf of the State; but forty days later, on January 4, 1950, the instrument of settlement was signed for the State in this form: 'Superintendent of Public Works for the People of the State of New York by E. B. Hughes (Director. Bureau of Rights of Way and Claims)'.

Claimants were not immediately advised of this formal execution by the State, but on January 12th, eight days after the agreement had been thus executed by him, Mr. Hughes sent a letter to the attorney for the claimants in response to his inquiry which stated that the agreement had been 'transmitted to the Attorney General's office under date of January 4, 1950 for the pre-paration of closing papers'.

The letter further advised claimants' attorney that the Attorney-General's office was being requested to 'prepare these papers at the earliest possible date'; that when ready they would be sent to the district engineer's office for the purpose of execution (by claimants) and that when the executed papers were received 'the Attorney General will certify the claim for

Page 564

payment and the papers will be transmitted to the Comptroller for the issuance of a check.'

On the same day as this letter (January 12th) the Attorney-General's office sent to the Department of Public Works the formal papers for execution by claimants, and also on the same day these were forwarded to the district engineer to 'call upon the claimant and procure the execution of the closing papers'. The next day these were transmitted to the attorney for claimants.

Instead of executing the papers called for by the instrument they had signed, claimants filed a claim in the Court of Claims which has allowed them judgment in the sum of $1,300 as damages for the taking, upon the legal theory that since the instrument signed by the claimants on November 25, 1949, was not accepted ...


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