In re City of Rochester

• Decision Date: 29 November 1892
• Citation: 32 N.E. 702,136 N.Y. 83
• Parties: In re CITY OF ROCHESTER.
• Court: New York Court of Appeals Court of Appeals

136 N.Y. 83

32 N.E. 702

In re CITY OF ROCHESTER.

Court of Appeals of New York.

Nov. 29, 1892.

Appeal from supreme court, general term, fifth department.

In the matter of the application of the city of Rochester to acquire certain water rights. The fund in compensation for said rights having been paid into court, a referee was appointed to take proofs, and report as to the distribution of the fund. The report so made was confirmed by both branches of the supreme court, and is now here on two cross appeals by William Hamilton and Gilman H. Perkins and others. Affirmed.

Bacon, Briggs, Beckley & Bissell, ( Theodore Bacon, of counsel,) for appellant Hamilton.

Joseph S. Hunn, for appellant Pekins.

Wm. N. Cogswell and Wm. F. Cogswell, for respondent Holden.

FINCH, J.

The questions involved in this appeal arise from a struggle among creditors for a priority of payment out of a fund paid into court by the city of Rochester as compensation for a water right taken from the landowner by condemnation proceedings. The fund was once awarded to Hamilton in a contest between him and the executor of the landowner, but to which Holden was not a party. Before the money was paid over to Hamilton, Holden intervened, asserting a priority of equitable lien, and, pending that litigation, and because of it, the fund was transferred from the savings bank to Hamilton under and by force of a stipulation which first recites the facts and then proceeds thus: ‘Now, therefore, it is stipulated and agreed that the said fund so on deposit in the Mechanics' Savings Bank, or such part thereof as shall be withdrawn by said Hamilton in pursuance of the said order of this court in case it shall be finally held either in the above-entitled proceeding or in the said action that the same or any part thereof rightly belongs to said Holden, and any order or judgment shall finally be made which directs the same or any part thereof to be paid to the said Holden, the said Hamilton will account for the fund so withdrawn by him, with interest thereon from the time of his withdrawal thereof to the time of such payment, at the rate of four per cent. per annum, and will pay over to said Holden such sum of money, with the same effect, and to the same amount, as if the same had actually remained on deposit in the said savings bank, at the rate of interest aforesaid.’ In accordance with this stipulation the fund was transferred to the custody of Hamilton, and Holden was allowed to intervene in the original proceeding, and set out and assert his claims, which have been recognized as prior and paramount to those of Hamilton. At the outset of the argument it is contended on behalf of Hamilton that the fund is no longer in court; that it has been paid over to him in pursuance of a lawful order of the court for its distribution, and has ceased to be subject to control in the original proceeding. It is insisted that such proceeding is at an end, with all its purposes accomplished, and all its authority exhausted, and that the sole remedy of Holden is through an action against Hamilton, based upon the former's equitable right and the terms of the stipulation. The objection is, of course, formal, and outside of the merits of the controversy; but it goes to the jurisdiction, and if sustained is decisive of the appeal. But I am unable to see that the transfer of the fund to Hamilton under the terms of the stipulation was intended to or did take the money out of court and end the judicial control over it flowing from the nature of the condemnation proceeding. The stipulation itself recites the existing situation as the cause and occasion of the agreement. The fund had been adjudged to belong to Hamilton, as between him and the executor of Smith, but nothing had been adjudged as against Holden, unless possibly by a default, which the court was at liberty to excuse and open. Holden intervened to stop and prevent payment of the fund under the existing order, to retain that fund in court, and subject to another and different judicial distribution, founded upon claims and equities never as yet presented for consideration. He was...