Domestic Realty Co. v. City of New York (In re White Plains Rd. in City of New York)

• Decision Date: 19 November 1918
• Citation: 224 N.Y. 454,121 N.E. 354
• Parties: In re WHITE PLAINS ROAD IN CITY OF NEW YORK. DOMESTIC REALTY CO. v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 454

121 N.E. 354

In re WHITE PLAINS ROAD IN CITY OF NEW YORK.

DOMESTIC REALTY CO.

v.CITY OF NEW YORK.

Court of Appeals of New York.

Nov. 19, 1918.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the application of the City of New York as to White Plains Road, etc. From an order denying an application of the Domestic Realty Company for an order requiring comptroller of the City of New York to pay interest on certain award, the company appealed to Appellate Division. Order reversed in part (184 App. Div. 52,171 N. Y. Supp. 705), and the company appeals. Order affirmed.

Benjamin Trapnell, of New York City, for appellant.

William P. Burr, Corp. Counsel, of New York City (Joel J. Squier, of New York City, of counsel), for respondent.

HISCOCK, C. J.

On September 20, 1899, Phebe V. S. Thorne and Harriet V. S. Thorne were owners of premises abutting what was known as the Old White Plains road. On said date proceedings were instituted for opening a new road to take the place of that upon which their premises thus abutted and to close the latter, and an order was made referring to the commissioners of estimate and assessment the duty of ascertaining the damages suffered by said property owners by reason of such discontinuance. Said commissioners in due time entered upon the discharge of this duty, and through quite a long period proceedings were conducted to ascertain the damages suffered by the above-named and other property owners. Intermediate the commencement of the proceedings and the award finally made, it is said that the Thornes sold their land to petitioner, Domestic Realty Company, and on or about October 11, 1910, by an instrument absolute and unqualified in its terms they duly transferred and assigned to such petitioner all of their claims for damages to be recovered in the foregoing proceedings. This assignment was duly received in evidence by the commissioners, and thereafter the assignee appeared by attorney in such proceedings and gave evidence in support of its right to such damages under said assignment. Thereafter an award was duly made to the Thornes as ‘owners,’ ‘subject to an assignment to the Domestic Realty Company dated October 11, 1910.’ On November 17, 1914, a demand was made upon the comptroller of the city of New York in behalf of the assignee for the payment of the sum thus awarded with interest. Nothing seems to have been done in response to this demand until May, 1917, when, in reply to a letter from the attorney for the assignee calling attention to the fact that warrants had been prepared for his client which included no interest on the award, a letter was written by the comptroller that the demand for interest had been disallowed pursuant to an opinion of the corporation counsel.

April 4, 1917, the Domestic Realty Company duly executed an instrument which, after referring to the above assignment and the award, stated:

‘Now, in consideration of the payment of the award with interest thereon by the city of New York or Phebe V. S. Thorne and Harriet V. S. Thorne, the receipt of which is hereby acknowledged, Demestic Realty Company hereby cancels and discharges said assignment.’

Shortly before this date, each of the Thornes executed an instrument appointing the Domestic Realty Company her attorney in fact and in her name, place, and stead to demand, collect, and receive from the city of New York the award of damages above referred to, and on April 6, 1917, on presentation of the foregoing instruments and of affidavits there was collected and received from the city by said Thornes, through the Domestic Realty Company as their attorney in fact, a warrant for the principal of the award which was recited to be ‘in full payment of above account except our claim for interest if any.’ Thereafter and in March, 1918, there was presented the present petition, which recited in substance the foregoing facts, except that of the cancellation of the assignment from the Thornes to the petitioner and the execution of the powers of attorney by the former to the latter and the collection thereunder of the principal of the award, and on which application was made to compel the city to pay interest on the award. This application was entirely denied by the Special Term, but the Appellate Division made a decision whereby it was ordered that the order appealed from ‘be and the same is hereby reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to the extent of requiring payment to the petitioner of the sum of $830.63,’ the latter being the amount of interest accruing on the award from the date when it was made to the date of confirmation and which was allowed in accordance with our decision in Matter of City of New York (West 151st street) 222 N. Y. 370, 118 N. E. 807.

[1] The first question presented to us is of practice and is the one whether without permission an appeal lies to this court from the unanimous decision of the Appellate Division rendered since the amendment of section 190 of the Code, adopted in 1917, limiting the right to appeal. As we construe the decision and order of the Appellate Division, the latter is appealable without...