In re the City of New York

Hatch, J.:

This controversy arises upon a difference of opinion as to the amount of interest to which the appellant was entitled on July 17, 1903. Under chapter 665 of the Laws of 1897 the city was authorized to extend Riverside drive. The commissioners of estimate and assessment completed and- signed their report Fovember 29, 1902. Under the terms of the act title to the land vested in,the city Seutember 22, 1900. The commissioners in their report awarded to the relator for the land taken the sum of $11,500 as the value of such land on the 22d day of September, 19Ó0, when title vested in the city, and the further sum of $1,508.41 interest thereon from the date of the vesting of title to the date of their report, making the total award $13,008.41. On April 23, 1903, the appellant relator filed a demand with the comptroller for the payment of this sum of $13,008.41, with interest thereon from the 29th day of Fovember, 1902, the date of the report. On July 17,1903, the comptroller had a warrant ready to pay what he considered was the amount due to the appellant, to wit, $13,272.91, which represented $11,500, with interest from September 22, 19Q0, to April 17, 1903, the date of-the confirmation of the report. The appellant claimed that upon that date the amount due was $13,498.39, a difference of $225.48., The appellant received the warrant drawn by the comptroller as a payment on account without waiving her claim for the full amount of all she claimed. She then made an application for a peremptory writ of mandamus to compel the comptroller to audit the balance of-the amount claimed by her, and from the order denying such application this appeal is taken.

The act under which this award was made provides in section 6 *525that upon the confirmation by the court of the report of the commissioners of estimate and assessment, the award, with interest, costs and expenses, shall become due and payable, and that the owner, in case of the failure of the comptroller of the city to pay the same within thirty days after a demand therefor, may apply to the court, and the court shall require the comptroller to pay the award, with costs and expenses, The real controversy which this case presents is as to whether the landowner was entitled to interest upon that part of the award which gave interest upon the value of the land as found in the award. If so, then the demand which was made by the landowner upon the city was a proper demand, as it would be of the amount due. As the city was authorized to take possession of the land prior to the confirmation of the award, the landowner was deprived of its use, and interest was awarded to him as compensation therefor. This was equitable, as without it the owner would be deprived of the use of the land and also of ’ the use of the money awarded as its value. When, however, the award was made, it was of a sum of money which represented the entire interest in the land. A part was for the value and a part for the value of the use> and these two items measured the sum of money which the owner on the day of the confirmation of the report became entitled to receive at the hands of the city. It seems to be not of consequence that the amount awarded was made up of the value of the land and the value of the use of the land after possession was taken by the city. The owner was entitled to both, as a measure of just compensation for what had been .taken from him. The two items, therefore, constituted the fund which she became entitled to receive, and as such fund represented her whole interest’ in the property of which she had been deprived she became entitled to the payment of interest by the. city upon the one part as much as upon the other. Interest upon the award at the prevailing rate was adopted to measure the damage which the claimant had sustained on account of the proceedings m wiviUm,. Calling it interest and placing it in a separate item did not change the-fact that it represented the value of the land to the owner at the time when it was taken and -paid for; consequently, there is no basis for any distinction between interest upon one sum and interest upon the other sum, as the owner was entitled to the whole, and *526being so entitled, her demand was a proper demand, with which the city should have made compliance. Such rule does not compound interest as applied to this situation. It was not awarded to her as such, but as damages for the taking. This view renders it unnecessary to consider whether the demand, if for too much, under the circumstances of this case, would have set interest running or no». There are cases cited by the learned counsel for the respondent which hold that where the demand is for too much, it is ineffectual to set interest running upon a lesser sum which ■may'-be due. ■ (Carpenter v. City of New York, 44 App. Div. 230.) Such rule, however, may be of doubtful- application to a case where the amount of the whole sum to which the owner is entitled is known, and it Is not complicated by mortgages, taxes and other liens, which, of themselves, make the specific amount due unliquidated. It may be doubtful, however, whether that rule applies where the whole amount of money which the party is entitled to receive is liquidated and known, and the only question relates to interest. Under such circumstances, when a demand is made, if the comptroller deems it to be for more than the sum due, he should offer to pay the sum concededly due, in order to protect the city from the interest charge. But however this may be, we think the two amounts in the present case constituted a single fund, which was awarded to the owner as value and damages for the taking of her land, and that, therefore, she was entitled to interest upon the whole sum, and the demand was for the sum to which she was entitled. This conclusion requires a reversal of this order. ■

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., Patterson and Ingraham, Jj., concurred.