In re Courthouse in City of New York

• Decision Date: 04 January 1916
• Citation: 216 N.Y. 489,111 N.E. 65
• Parties: In re COURTHOUSE IN CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

216 N.Y. 489

111 N.E. 65

In re COURTHOUSE IN CITY OF NEW YORK.

Court of Appeals of New York.

Jan. 4, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Application by the City of New York to acquire land as a site for a new courthouse. From a final order of the Appellate Division (168 App. Div. 58,151 N. Y. Supp. 407), dismissing an appeal by Samuel Green from an order of the Supreme Court confirming the report of the commissioners of estimate and appraisal, appellant appeals. Order reversed, and case remitted.

Alexander Rosenthal and George Gordon Battle, both of New York City, for appellant.

Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas, of New York City, of counsel), for respondent.

WILLARD BARTLETT, C. J.

This is a condemnation proceeding to acquire lands as site for the proposed new courthouse in New York City. By an order of the Supreme Court confirming the report of the commissioners of estimate and appraisal the sum of $135,000 was awarded to the appellant. He accepted payment of the award from the city, but nevertheless appealed to the Appellate Division from the order of confirmation. That court has dismissed his appeal, and he comes here.

[1][2] The learned counsel for the respondent questions our jurisdiction to review the order of dismissal. I think we have jurisdiction. By refusing to hear his appeal the Appellate Division virtually made the order of confirmation absolute. The effect upon the rights of the appellant was the same as an affirmance on the merits would have been. If this had been an action instead of a special proceeding, the proper practice would have been to enter a judgment of dismissal upon the order. Stevens v. Central National Bank of Boston, 162 N. Y. 253, 255,56 N. E. 628.A special proceeding, however, regularly terminates in a final order, and this order possesses all the elements of finality. The case cited is authority for the proposition that the courts below cannot deprive this court of jurisdiction by dismissing an appeal thus leaving a judgment or final order in full force against the party claiming to be aggrieved. ‘In many cases that would have the same effect upon the rights of the parties as an affirmance.’

[3] I proceed, therefore, to review the order of dismissal. The rule is well established that in ordinary cases a party who accepts the benefit of a judgment thereby waives his right to appeal therefrom. Alexander v. Alexander, 104 N. Y. 643, 10 N. E. 37. The waiver results from the inconsistent attitude of a party who at the same time collects the amount of a judgment in his favor and appeals for the purpose of reversing that judgment. But in Matter of N. Y. & H. R. R. Co., 98 N. Y. 12, 18, Judge Earl, writing for the court, said that this rule was not applicable to appeals in condemnation proceedings where the claimant seeks to question simply the amount of the award.

‘That rule is enforced because it would be inequitable and unjust to permit a party to take and hold the benefit of a decision, and yet appeal from and seek to annul it, and the reason of the rule does not apply to such a case as this. Here the city did not seek to enforce the award; it took the money awarded for the land of which it was deprived. It did not seek by the appeal to get the land back again, or to divest the title of the company, but sought only to get more adequate pay for the land.’

In the case cited the money, pursuant to the provisions of the Railroad Law, had been deposited with the chamberlain of the city of New York from whose custody the city did not withdraw it, so that it was a case of deposit for the benefit of the landowner instead of actual payment. In discussing the question upon principle, Judge Earl added:

‘If * * * the order shall be reversed, and a new appraisal ordered, the title and possession shall remain in the company (the condemning party), and if, upon the new appraisal, the award be diminished, the landowner must refund the difference, and if it be increased, the company must pay the difference. But in any event, after the payment or deposit of the first award, the landowner has, during the corporate existence of the company, lost all right, estate, and interest in the land, as well as the use thereof.’

The precise point presented by this appeal, however, was necessarily passed upon in our decision in Matter of Water Commissioners of White Plains, 195 N. Y. 502, 505,88 N. E. 1102, 1103. There an award had been made to property owners, who declined to take it and appealed. The appeal resulted in a new appraisal and an increased award. The property owners claimed interest on the entire amount from the time of the first award. It was held that as the property owners were entitled to take the award and still appeal, they were only entitled to interest upon the excess of the second award over the first from the time the condemning party...