The opinion of the court was delivered by: PORT
Memorandum-Decision and Order
City Investing Company (hereafter 'CIC'), claiming to be entitled to the entire amount of the award in the above-entitled condemnation action, has moved to fix the total just compensation at the sum of $ 178,700.00,
and for a determination that said amount be awarded to itself and to the exclusion of all other claimants. While not designated as such, the motion will be treated as one for summary judgment; for the reasons hereinafter stated, summary judgment is granted for relief requested.
CIC bases its claim to the entire award to the exclusion of all others, on an assignment from Southeastern Industrial District (hereafter 'SID'). The right of CIC to the entire award, and to stipulate its amount, is contested by SID, the owners of the subject premises at the time the Declaration of Taking, the Complaint in Condemnation, and the Order awarding possession to the United States were filed.
The facts in this case may be set forth as follows:
The Declaration of Taking and the Complaint in Condemnation in this action were filed on December 29, 1966, and $ 76,850.00 was deposited in the Court for estimated just compensation. The estate sought to be condemned was 'the right to use and occupy' certain portions of the Chimes Building for:
a term commencing January 1, 1967, and ending June 30, 1967, with the Government having the right to extend the said use and occupancy of said property for six (6) months to December 31, 1967, upon thirty (30) days prior written notice to the owners, and with the Government having the right to terminate at any time upon giving thirty (30) days prior written notice to the owners, and with the right to make alterations, additions and improvements and with the right in the United States to remove within a reasonable time after expiration of said initial term or any extension thereof or any earlier effective date of termination, any and all improvements and structures placed therein or thereon by or for the United States during its use and occupancy of the property under said initial term or any extended term. Complaint in Condemnation, Schedule 'A', page 3.
On December 29, 1966, the Court granted an Order of Possession to the United States as of January 1, 1967, on which date SID was the owner of the property.
On March 30, 1967, CIC commenced a state court foreclosure action, to foreclose certain mortgages that it held upon the said Chimes Building. The New York State Supreme Court for Onondaga County (Mead, J.) granted an Order on March, 31, 1967 appointing a Receiver for the benefit of CIC to receive all rents and profits then due or to become due, pending the foreclosure action.
On July 5, 1967, this Court granted leave to the Receiver to intervene in this proceeding and be made a party defendant, and ordered payment to the Receiver of the sum of $ 76,850 on deposit, to be credited against the sum fixed and determined by final order and judgment of this Court as just compensation for the taking of the property.
On May 26, 1967, the United States elected to renew its leasehold on portions of the Chimes Building for an additional 6 months from July 1, 1967 to Dec. 31, 1967, and on June 14, 1967 deposited the sum of $ 76,850 in the Court, which represented the estimated compensation for the right to use and occupy for the additional period.
A stipulation was entered into on October 16, 1937 among the United States, the Receiver, SID, and the Equitable Life Assurance Society of the United States (hereafter 'Equitable'), to the effect that (1) the United States continue to occupy the premises until November 30, 1967 (instead of the period previously elected by the plaintiff), and that (2) an order should be entered directed the Clerk to pay the Receiver, out of the $ 76,850 deposited in the Court, the sum of $ 64,041.65 as rental for the period of July 1, 1967 to November 30, 1967, said sum to be credited against the just compensation to be fixed.
Based on the stipulation, an Order dated and entered October 18, 1968 directed payment of $ 64,041.65 to the Receiver, said sum to be applied against just compensation.
Pursuant to an agreement between SID and CIC, CIC accepted a deed to the Chimes Building from SID, recorded October 17, 1967, in lieu of foreclosure. As part of the transaction, CIC paid $ 10,000.00 to SID, and SID, 'for the purpose of affecting a transfer to City Investing Company of all our right, title and interest in and to (Chimes Building), including all the rents due and to become due for the use and occupancy of said real property,' executed a written assignment dated October 2, 1967, the pertinent parts of which are set forth in full in the footnote below.
On November 28, 1967, the foreclosure action in the State Supreme Court was dismissed, the notice of pendency cancelled, the Receivership terminated, and the Receiver was directed to surrender possession of the premises to CIC and settle his account as said Receiver.
The defendants Irving Trust Company and James A. Austin were the holders, as trustees, of a consolidated second mortgage lien; they assigned said mortgage to CIC by an instrument dated March 27, 1967 and recorded on March 30, 1967, and by ...