People ex rel. New York City Church Extension v. Coler

McLaughlin, J.:

In 1895 the city .of Hew York instituted proceedings under the Consolidation Act (Laws of 1882, chap. 410) to acquire title, and, on the 28th of April, 1896, it did acquire title, to certain lands necessary for the opening of a street called Marion avenue. In the proceeding an award of $1,000 was made by the commissioners of estimate and assessment to the relator “ for damage to ■ buildings by reason of the intended regulation of the street ” (Marion avenue). This award was not made because the city had taken or acquired . title to any of the relator’s land, but solely to compensate it for the damages which it might sustain by reason of an injury to its buildings as a result of the intended opening and regulation of the proposed street.

The final report of the commissioners of estimate and assessment was, by an order of the Supreme Court, confirmed on the 2d of March, 1900, and the relator immediately thereafter demanded from the city not only the $1,000 awarded to it, but also interest thereon from the 28th of April, 1896, the time when the title to the land which the city took for Marion avenue vested in it. The appellant, the comptroller of the city, made no objection to paying the $1,000 awarded, but he refused to pay interest thereon, whereupon the relator applied for and obtained a peremptory writ of mandamus directing such payment, and from this order the appeal is taken.

We are of the opinion that the relator was not entitled to interest. The city did not acquire title to any of its land. The award was made under section 978 of the Consolidation Act, under which the rights of the parties must be determined, and which, among other things, provided that: “ If the said commissioners of estimate and assessment shall judge that such intended regulation will injure any building or buildings not required to be taken for the purpose of opening, extending, enlarging, straightening, altering or improving such street, or part of a street or public place, they shall *79proceed to make (together with the other estimates and assessments required by the first above-mentioned act to be made by them) a just and equitable estimate and assessment of the loss and damage which will accrue by and in consequence of such intended regulation to the respective owners, lessees, parties and persons respectively entitled unto or interested in the said building or buildings so to be injured by the said intended regulation.” The purpose of this section is to confer upon the commissioners of estimate and assessment the power to compensate the owners of property for any injury which they may sustain to their buildings by reason of the opening and regulation of a street, not because the city takes or acquires title to the property of such owners, but simply because the street will injure their buildings. The awards are to be made to the parties interested in the buildings so to be injured by the said intended regulation, etc.

Section 992 of the Consolidation Act, as amended by Laws of 1895, chapter 449, does not apply to the relator. That section only applies to awards made for title taken by the city. In that case the owner is entitled to be compensated as soon as his title is taken from him. It is then his damage is sustained, and until he has been compensated for that, the statute provides that he shall have interest on the award made. (Matter of Board of Street Opening, 35 App. Div. 406.) But the language used in this section is, manifestly, not applicable to an award made under section 978, where no lands are taken and the owner of the buildings cannot sustain any damage until the street has been opened, altered or changed. The vesting of title in the city of lands taken in and of itself does no injury to the owners or persons interested in the buildings standing on land not taken. This rule is just both to the relator and the city, and manifestly for the reason that the relator’s damage does not commence at the time when the city became vested with title to the lands which it was necessary for it to take in order to open the avenue in question. It will be damaged only after the street shall have been opened and regulated; and to hold that it is entitled to interest on the amount awarded to compensate it for the proposed opening, would be to permit it to reeover interest upon an award from a date prior to the time it had suffered any damage whatever. *80An entirely different situation is presented when the land itself is taken. As already indicated, the owner loses his land at the time the title vests in the city, and in justice the award made to compensate him for that should bear interest from that date, because it is as of that time that his damage has been sustained. .

The relator was not-entitled to interest on the award. Its demand was properly refused by the comptroller, and for that reason the order appealed from must be reversed, with costs and disbursements, and the writ quashed, with fifty dollars costs.

Van Brunt, P. J., and Ingraham, J., concurred; O’Brien, J., dissented.