Merriman v. City of New York

• Decision Date: 25 November 1919
• Parties: MERRIMAN v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 279

125 N.E. 500

MERRIMAN

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

Nov. 25, 1919.

Action by Bazena T. D. Merriman against the City of New York, William G. Mulligan, and Merle I. St. John. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (185 App. Div. 888,171 N. Y. Supp. 1093) affirming a judgment in favor of the plaintiff against it, the City of New York, by permission, appeals.

Reversed.

Appeal from Supreme Court, Appellate Division, First Department.

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

Theodore E. Larson, of New York City, for respondent.

CHASE, J.

In 1899 and prior thereto, Katharine F. Merritt owned certain lands in the city of New York. On November 14th of that year she gave to the plaintiff a mortgage covering said lands to secure the payment of $7,000, which mortgage was duly recorded.

In 1906 the city of New York duly instituted a proceeding to acquire title to lands required for the purpose of opening and extending Belmont avenue. The lands sought to be taken included a portion of the lands covered by the plaintiff's mortgage, and the part so taken is known in the proceeding as ‘damage parcel No. 3.’ Commissioners were duly appointed in the proceeding, and on March 1, 1907, pursuant to a resolution of the board of estimate and apportionment, title to lands including said ‘damage parcel No. 3’ became vested in fee in the city of New York.

On December 3, 1907, a preliminary report of the commissioners was duly made and filed. In and by such report an award of $3,999 was made to ‘unknown owners' for the damages sustained on account of the taking of said ‘damage parcel No. 3.’ At the time title in fee to said ‘damage parcel No. 3’ became so vested in the city of New York, Carolina Wenninger was the owner in fee thereof; the same having been transferred and sold to her through mesne conveyances from Katharine F. Merritt.

On January 28, 1908, at a meeting of the commissioners duly called to hear objections to their preliminary report, counsel for Carolina Wenninger in proof of her title to ‘damage parcel No. 3’ offered in evidence an affidavit made by her, which was received by the commissioners, in which she alleged that she was the owner of the lands known as ‘damage parcel No. 3’ and in which she also alleged that the same were subject to a mortgage to the plaintiff, and she therein stated the date and date of record thereof. The final report of the commissioners which was filed January 2, 1909, provided for the payment of the award and interest thereon to Carolina Wenninger and did not refer to or make any provision for the payment of the plaintiff's mortgage. On August 7, 1909, the final report of the commissioners was duly confirmed by the court.

On January 3, 1910, the plaintiff commenced an action to foreclose her mortgage, making the city of New York a party defendant thereto. The complaint did not contain an allegation relating in any way to the city of New York except the general allegation that the interest of the defendants, if any, in the real property therein described, accrued subsequent to that of the plaintiff. On March 22, 1910, the city of New York appeared in the action by the corporation counsel. The defendant Mulligan in this action appeared in the foreclosure action as a defendant and also as attorney for various other defendants.

While the foreclosure action was pending and on the 17th of May, 1910, Carolina Wenninger appeared at the office of the comptroller of the city of New York in company with her attorney, the defendant Milligan, and her counsel, the defendant St. John, and made a demand for payment to her of the award and filed with the comptroller an affidavit in which she alleged falsely that there were no mortgages or liens of any nature whatsoever upon the lands embraced within ‘damage parcel No. 3.’ The comptroller paid to her the award with interest amounting to $4,786.58. She paid the same to her said attorney from which he paid her counsel, St. John, a bill for services as counsel in the condemnation proceeding and retained the residue. St. John received the amount paid to him in good faith, believing that the allegations of the affidavit were true. Mulligan received the amount paid to him knowing that the affidavit of his client was false and retained the same with intent to defeat the plaintiff's lien, if any, thereon.

On June 13, 1911, judgment of foreclosure and sale was entered in plaintiff's action which did not affect the defendant city of New York as it simply directed the sale of that part of the mortgaged premises not including ‘damage parcel No. 3.’ A sale was had accordingly, which resulted in a partial payment on account of the plaintiff's mortgage, and a judgment of $2,044.35 for deficiency was rendered against Katharine F. Merritt, the mortgagor, in favor of the plaintiff. Execution was issued on that judgment and returned unsatisfied. The said Carolina Wenninger has since died intestate and insolvent. The said Mulligan is insolvent. The said St. John has repaid to the use of the plaintiff the money received by him from Mulligan.

On April 6, 1915, the plaintiff presented to the comptroller of the city of New York a written demand for the payment of the said deficiency judgment, but the same has not been paid. The plaintiff brought a proceeding by petition to compel the comptroller to pay the amount of the deficiency judgment to her out of the award. The petition was denied on the ground that plaintiff's only remedy was by an action under section 1001 of the present Greater New York Charter. (Laws 1901, c. 466). The order of the Special Term was affirmed at the Appellate Division (Matter of City of New York, 172 App. Div. 952, 157 N. Y. Supp. 1118), and in this court ‘without prejudice to the petitioner's remedy by action against the city or against Caroline Wedinger’ (Matter of City of New York, Belmont Ave., 218 N. Y. 721, 113 N. E. 1050). This action is brought against the city of New York and against Mulligan and St. John.

The trial court adjudged that the defendant Mulligan refund and repay to the plaintiff the amount of her deficiency judgment less the amount repaid to her by the said St. John with the costs of the action, and further adjudged that, in the event that execution against the property of Mulligan be returned wholly or partly unsatisfied or said judgment remain unsatisfied for 60 days, the defendant city of New York pay the amount thereof to the plaintiff, and that the plaintiff have judgment against the city therefor. The complaint was dismissed as against the defendant St. John. The city of New York appealed to the Appellate Division from the judgment as against it, and the judgment was by that court unanimously affirmed. Merriman v. City of New York, 185 App. Div. 888,171 N. Y. Supp. 1093.

[1][2] The plaintiff in bringing this action for the purposes alleged in her complaint necessarily affirms the title acquired by the city of New York to ‘damage parcel No. 3.’ The final order of confirmation of the commissioners' report is conclusive upon the parties of whom jurisdiction was obtained in the proceeding at least as to the condemnation of the land and the amount of the award. Matter of Department of Parks, 73 N. Y. 560;Youngs v. Stoddard, 27 App. Div. 162,50 N. Y. Supp. 475.

[3] The provisions of the charter of the city of New York by which the fee of real property is taken for street purposes are constitutional. Matter of Mayor, etc., City of N. Y., 99 N. Y. 569, 2 N. E. 642.

[4] The constructive notices provided by the charter are sufficient to constitute due process of law as against the owners of such real property. Matter of Mayor, etc., supra.

The proceeding to acquire title for the purpose of opening and extending Belmont avenue was commenced and concluded while the Greater New York charter enacted in 1901 (Laws of 1901, c. 466) was in force. Our references are to that charter.

[5] The term ‘real estate,’ as used in the charter, embraces--

‘All uplands, * * * and every estate, interest and right, legal and equitable, in lands or water, or any privilege or easement thereunder, including terms for years, and liens thereon by way of judgment, mortgages or otherwise, and also all claims for damage to such real estate.’ Greater N. Y. Charter, § 485.

The real estate so acquired in the proceeding included the plaintiff's lien by mortgage on said ‘damage parcel No. 3.’ She was an owner within the meaning of the charter.

[6] An award payable by the municipality is a sure and certain provision for the payment of compensation for the real estate for which the award is made, and it stands inplace place of the real estate for the purpose of determining in equity the rights of the owners. By the proceeding the real estate acquired in the proceeding was obtained entirely free from the claims of all owners including all persons having an interest therein either legal or equitable. Matter of City of Rochester, 136 N. Y. 83, 32 N. E. 702,19 L. R. A. 161.

[7] Where a part of any lot or parcel of land or other premises is taken for street purposes, ‘all contracts and engagements respecting the same shall, upon such vesting of title, cease, determine and be absolutely discharged as to the part thereof so taken.’ Greater New York Charter, § 996. Such provision is valid. Matter of Mayor, etc., supra; Lewis on Eminent Domain, 1260.

The charter also provides that all damages awarded by the commissioners of estimate and assessment shall be paid by the city of New York to the respective persons mentioned or referred to in their report. Greater New York Charter, § 1001.

After the commissioners are appointed, they are required by the charter to publish a notice of their appointment ‘containing a brief statement of the purposes for which they have been...