Donnelly v. City of Brooklyn

• Decision Date: 15 April 1890
• Parties: DONNELLY v. CITY OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 9

24 N.E. 17

DONNELLY

v.CITY OF BROOKLYN.¹

Court of Appeals of New York.

April 15, 1890.

Appeal from city court of Brooklyn, general term.

Action by Owen Donnelly against the city of Brooklyn for the amount of awards made to him as owner on the widening of North Second street, under chapter 559 of the Laws of 1871, which were confirmed by an order of the supreme court, November 9, 1876. From a judgment of the general term affirming the judgment of the trial term for plaintiff, except that it reduced the recovery of interest from March 9, 1877, to a date beginning October 4, 1888, when plaintiff filed his claim with the comptroller, preliminary to bringing suit, both parties appeal,-plaintiff from the reduction; defendant from the judgment as modified.

J. M. & A. H. Van Cott(Joshua M. Van Cott, of counsel,) for plaintiff.

Almet F. Jenks, for defendant.

RUGER, C. J.

The defendant appeals from a judgment which affirmed, with a modification in regard to interest, a judgment of the trial court awarding to plaintiff the damages appraised for the appropriation by the defendant, under the right of eminent domain, of his real estate in Brooklyn for the purpose of widening North Second street. The sole point made upon the defendant's appeal is the bar of the statute of limitations. Its claim is that the gravamen of the complaint is for damages occasioned by the negligence of the defendant's assessors in omitting to make an assessment upon the plaintiff's property for the benefits derived from the improvement referred to, and therefore, the action being based upon such negligence, that the limitation of six years applies, and bars the action. The plaintiff also appeals from the judgment, and claims that so much of the decision of the general term as reverses the allowance of interest made by the special term, and restricts his right to recover therefor to the time following the presentation of his claim and a demand for its payment, is erroneous. His contention is that the action is founded upon a judgment which, although capable of being reduced by an assessment for benefits, still becomes a liquidated demand, payable absolutely upon the neglect of the assessors to make an assessment within a reasonable time, and thereby effect a reduction of the award, and that interest runs from the time such reduced award becomes payable. It is claimed by the plaintiff that all of the questions involved in the case, except that of interest, have been settled in his favor by the decision of this court in McCormack v. City of Brooklyn, 108 N. Y. 49, 14 N. E. Rep. 808; and it is quite clear that, so far as the material questions are concerned, the claim is well founded. A reference to that decision, as well as to some others, recently considered in this court, affecting the liabilities of the city of Brooklyn under statutes authorizing the taking of private property for street purposes, will serve to narrow the range of discussion, and determine the extent to which the principle of stare decisis should be applied in this case. The following among other propositions may be considered to have been established by the cases referrd to: (1) That the effect of chapter 559, Laws 1871, ‘to widen and improve North Second street,’ in the city of Brooklyn, as well as other similar acts, is ex propriore vigore to condemn the land therein described for the purposes of the improvement provided for, and to authorize the city to appropriate such land to such purposes, subject to the obligation on its part of making compensation therefor as provided by the act. McCormack v. City of Brooklyn, 108 N. Y. 49, 14 N. E. Rep. 808; Sage v. Same, 89 N. Y. 189;Genet v. Same, 99 N. Y. 300, 1 N. E. Rep. 777. (2) That authority given in acts appropriating private property for public improvements, which impose the duty of making payment therefor upon a municipal corporation, and which also authorize the reduction of the amount of awards for the value of property taken by the amount of assessment to be made on the residue of the same lots for benefits, is not obnoxious to the constitutional obligation that it permits a taking of private property for public use without compensation. Genet v. City of Brooklyn, 99 N. Y. 297;²Livingston v. Mayor, etc., 8 Wend. 85. (3) That the effect of the provision in such acts which authorizes the application of assessments pro tanto to the payment of awards is to postpone the time of the payment of such awards until the city has had an opportunity to institute and complete the necessary proceedings to determine and fix the amount of such assessments, and the property, liable therefor, through the regular agencies provided by its charter for that purpose. McCormack v. City of Brooklyn, supra. (4) That the provisions of section 15, tit. 4, c. 384, Laws 1854, as amended by chapter 63, Laws 1862, providing that the liability of the city for the payment of awards should not arise until assessments have been made and deducted from awards, and the report of the assessors is confirmed, although incorporated into the act of 1871, could not be so construed as to authorize the city to prolong indefinitely the time for the payment of awards, or enable it to defeat the land-owner's right to the compensation which was guarantied to him by the constitution. Sage v. City of Brooklyn, supra; McCormack v. Same, supra. (5) That land-owners in whose favor awards have been made under such acts are respectively entitled to maintain actions against the city, upon such awards, for the damages adjudged to them; but in case assessments are made by the city for benefits, the amount of such assessments must be deducted from the amount of the respective awards and judgments rendered for the balance only, and in cases whether no assessments have been made, and the making thereof has been unreasonably delayed, the land-owner is entitled to recover the full amount of his award. Sage v. City of Brooklyn, supra; Genet v. Same, supra; Taylor v. Same, 108 N. Y. 616, 15 N. E. Rep. 73.

The defendant, while, practically, conceding the correctness of the propositions stated, yet contends that the action is based upon negligence, and is barred by the expiration of six years after the city has permitted a reasonable time to elapse for perfecting its assessment, and the period of four months, after the right to proceed had occurred, is claimed to constitute such reasonable time. It is argued, in support of this claim, that the award of damages having been made and confirmed in November, 1876, and a reasonable time having elapsed thereafter for the making of an assessment without action thereon by the city, such award became due and payable more than six years before the commencement of the action, which did not take place until November, 1888. Of course, if the defendant's counsel is mistaken in the claim that the action is based upon negligence, the whole structure of his argument falls to the ground. It is quite obvious that he has misconceived the plaintiff's cause of action, as it, in fact, has no other foundation than a claim of damages for the value of his property, which has been taken under lawful authority by the city. It is for the taking of the property, and not for any act of negligence on the part of the city. The scheme of the charter authorized the city to pay awards in a particular manner, if it chooses to do so, and the only consequence of its neglect to make such payments is, as we have decided, to leave the award enforcible for its whole amount. The negligence of the city is important only in respect to the effect it may have in depriving it of a possible defense founded upon the claim that the award was imperfect, and not obligatory upon it to its full extent. Its neglect simply removed an apparent obstacle to the enforcement of the plaintiff's demand.

The learned counsel for the defendant has reviewed at some length the provisions of the statutes of 1871, 1854, and 1862, with a view of showing that no award of damages can be considered made until after the assessors have also made an assessment for benefits, and deducted the amount of such assessment from the respective awards, and struck a balance thereon, which balance he contends constitutes the only award contemplated by these statutes. He bases upon this conclusion the argument that the action must therefore be founded, not upon an incomplete award, but upon the neglect of the city. This point is not open for discussion, as it was necessarily decided in the McCormack Case that an award for damages was binding upon the city under the statute referred to, although no assessment was ever made or attempted. The complaint in that action was exclusively upon the award, and the reference therein to the negligence of the city was for the sole purpose of obviating a possible defense. The cases referred to by the counsel for the city to support his contention are authorities against him, since in each one recoveries were had upon a wards similar to that involved in this case, and such recoveries were, respectively, on appeal, sustained in this court. Sage v. City of Brooklyn, 89 N. Y. 189;Genet v. Same, 99 N. Y. 300, 1 N. E. Rep. 777; Taylor v. Same, 108 N. Y. 616, 15 N. E. Rep. 73.

The contention that those actions were not founded upon awards, because the assessments therein were deducted from the awards, and judgment given for the balance only, does...