While concurring in the result arrived at by Mr. Justice Ingraham in this case, it seems necessary to notice that part of the opinion in whicii it is claimed that it is decided by the court of appeals in Re Department of Parks, 73 N. Y. 560, that where the commissioners have made an award distinctly to one person in proceedings under the act of 1813, and cases to which the provisions of that act are made applicable, the city is bound absolutely to pay the award to the person to whom the award is made, leaving any other person claiming title to the property condemned, and to the award, to their action against the party to whom the award is made. Upon reference to the case cited, it will be seen that the court, in speaking of the final and conclusive character of the award, was referring to the interest condemned, and its value, and to those features only. The court say: “The award of the commissioners of estimate and assessment is required by the statutes to be confirmed by the supreme court, and, when so confirmed, is made final and conclusive upon the city and the owners of the land taken. Under the statute of 1813 there is ample opportunity for the correction of all mistakes of law and fact, and, unless they are corrected in the proceedings before confirmation, all parties interested are precluded from complaining of them. The award, after confirmation, becomes in the nature of a judgment, which cannot be assailed collaterally. It is final and conclusive upon all parties as a judgment.” The court then say: “The amount awarded must be taken to have been made for the interest of the unknown owners, whatever it was. If it was too great, the city should have moved to correct it before confirmation of the award. ” The sole question before the court upon that application was to determine who the unknown owner of the land was, and, when that was determined, he was entitled to the money just as if he had been known, and the award had been to him by name. It is immaterial whether he owned an absolute fee, or a fee subject to a public easement. The amount awarded must be taken to have been made for his interest, whatever it was. That seems to have been the question which was adjudicated upon in the case cited, and nothing more. Furthermore, the court could not have intended to hold that the report of the commissioners was final and conclusive upon the city, in view of the provisions of section 183 of the act of 1813, by which it was provided that “the respective person or persons, party or parties, in whose favor the same [the awards’] shall be reported, or his, her, or their executors, administrators, or successors, at any time or times, after application first made,” etc., “may sue for and recover the same, with interest from and after the said application therefor, and the costs of suit, in any proper form of action against the said mayor,” etc., “in any court having cognizance thereof, in which it shall be sufficient to declare generally for so much money due to the plaintiff or plaintiffs therein by virtue of this act, for premises taken for the purposes hereinbefore mentioned, and it shall be lawful for the plaintiff or plaintiffs to give any special matter in evidence under such general declarations; and this act, and the report of said commissioner, with proof of the right and title of the plaintiff, or plaintiffs to the sum or sums demanded, shall be conclusive evidence in such action.”
It is clear that, if the report was to be conclusive as to the person named, the legislature would not have provided that tfie report, with proof of the right and title of the plaintiff or plaintiffs to the sum or sums demanded, shall be conclusive evidence in such action. If the report itself was conclusive upon the point of ownership, it would clearly not have been deemed necessary that proof thereof should be offered upon the part of the plaintiff. This view is further emphasized by section 184 of the same act, which provides that, “where any such sum or sums or compensation so to be reported by the said *75commissioners in favor of any person or persons, whether named or not named in said report, shall be paid to any person or persons, party or parties, whomsoever, when the same shall of right belong and ought to have been paid to some other person or persons, it shall be lawful for the person or persons to whom the same ought to have been paid to sue for and recover the same as so much money had and received to his, her, or their use by the person or persons, respectively, to whom the same shall have been so paid. ” Here the right of the real owner to recover the award, even after it has been paid to the person named in the report, is distinctly recognized. How much more would he have the right to recover before any payment to the person named in the report was made. This is the construction put upon this section of the act of 1813 by the court of appeals in the case of Spears v. Mayor, 87 N. Y. 359. In that case an award had been made to one Matthews, as mortgagee, after another claimant of the amount of the award commenced an action in equity to restrain the defendant, the city, from paying the award to Matthews, and to establish the plaintiffs’ claim thereto. After the commencement of this action, Matthews sued the city to recover, as mortgagee, the amount of the award. The city made default, and judgment for the full amount was entered against it, which it paid; it claiming that by virtue of the particular act then under consideration, and various provisions of the statutes in relation to the opening of streets and avenues, the plaintiffs could not maintain their action. It was held by the court of appeals that, under these provisions, the ascertainment of the person entitled to damages was incidental, and the report of the commissioners was not conclusive in regard thereto, and that the payment by the city after notice was at its peril; and the learned judge who wrote the opinion, being the same who wrote the opinion in the case first cited, uses the following language: “Under these provisions of law, the contention on the part of the appellants is that the report of the commissioners was so far conclusive as to the person entitled to the award that the city was obliged to pay the same to Matthews, and that the only remedy of the plaintiffs was to recover the amount thereof of Matthews after payment to him. Our attention has been called to no decision giving such a construction to these provisions of law. The main purpose of the appointment of commissioners was to have the damages in consequence of lands taken for street improvements appraised, and the amount thereof assessed, as directed by law; and for that purpose their report, when confirmed, unless vacated or set aside by some direct proceeding, was declared final and conclusive. The ascertainment of the names of the persons whose lands were taken, or to whom damages were to be paid, was merely incidental to the main purpose, and was for subsequent guidance of the city authorities and the protection of the city. The very terms in which the provisions of the law are expressed show that the report was not to be conclusive as to the persons entitled to the damages awarded, because it is provided in section 184 that, even after payment to the person named in the award, the rightful claimant of damages may recover them of the person thus paid; and in section 183 it is provided that, before the person named in the award can recover the amount thereof of "the city, he must prove not only the report of the commissioners, but his right atid title to receive the same; hence, as we construe that section in the suit by Matthews against the city for this award, if the city had defended, he would have been obliged to prove his right and title to the award, and he could have been defeated by proof that these plaintiffs were entitled to receive payment thereof. It is undoubtedly true that the city would be justified to pay the person named in the award, unless it had received notice of an adverse claim. After such notice, and certainly after suit commenced for the award by a person not named in the report as entitled thereto, the city would pay to the person named therein at its peril. This construction of the statutes can lead to no serious embarrassment of the *76city in paying such awards, because, in the case of conflicting claims known to it, it can compel an interpleader, and thus relieve itself from embarrassment or double responsibility. The construction contended for would operate unjustly upon persons situated like these plaintiffs. They could not sue the city, and they might not be able to compel the city to pay to the person named in the award, and they thus might be compelled to wait an indefinite time until the person named in the award should choose to compel payment to him, and after such payment the only security they w'ould have for their damages would be the personal responsibility of such person. Here the plaintiffs were, in fact, entitled to the award made. They had a double remedy: Before payment by the city to Matthews, they could sue the city; after payment to Matthews, they could sue him.”
The claim upon the part of the plaintiff that the filing of the notice of lis pendens, in the action brought by her against Kennedy in respect to this property, was notice to the city, cannot be maintained, because it is well settled that, even if a deed has been recorded, (and certainly a lis pendens is no greater notice than a deed,) the payment by the city in good faith to the party named in the report as the owner will protect the city against the true owner. It is only when actual notice is given to the city that it has any reason to refuse to pay to the party named in the report. It would seem, also, that, the plaintiff having elected to call Kennedy to account for the money which he had received, she is deprived from pursuing any remedy she might have had against the city. The criticism passed upon the case of Fowler v. Bank, 113 N. Y. 455, 21 N. E. Rep. 172, by the counsel for the plaintiff does not seem to distinguish it in principle from the ease at bar. The exceptions, therefore, should be sustained, and anew trial ordered, with costs to defendants to abide event.
Daniels, J., concurs.