People ex rel. Palmer v. Travis

• Decision Date: 19 March 1918
• Citation: 119 N.E. 437,223 N.Y. 150
• Parties: PEOPLE ex rel. PALMER et al. v. TRAVIS, State Comptroller.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 150

119 N.E. 437

PEOPLE ex rel. PALMER et al.

v.TRAVIS, State Comptroller.

Court of Appeals of New York.

March 19, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Mandamus by the People, on the relation of Sarah E. Palmer and others, against Eugene M. Travis, as Comptroller of the State of New York. Peremptory writ issued on an order of the Special Term, and from an order of the Appellate Division (180 App. Div. 25,167 N. Y. Supp. 467), reversing the order granting writ, the relators appeal. Reversed.

Cuddeback and Pound, JJ., dissenting.William H. Harris, of New York City, for appellants.

Merton E. Lewis, Atty. Gen. (A. F. Jenks, of Albany, of counsel), for respondent.

ANDREWS, J.

On March 30, 1915, the Court of Claims awarded to Lowell M. Palmer and others $960,712.50 for damages for land appropriated by the state under the authority of chapter 746 of the Laws of 1911. This award was based upon the report of Judge Haight, an official referee, to whom on the stipulation of the claimants and the Attorney General had been referred the question of title to the lands involved and the question of damages. There had been some dispute as to whether a part of the lands appropriated belonged to the claimants or to the state or to the city of New York. The referee found in favor of the claimants on this question of title; found that the state had appropriated all the land covered by their claim, and fixed the damages. The judgment of the Court of Claims was affirmed in the Appellate Division (174 App. Div. 933,160 N. Y. Supp. 892), and in this court (220 N. Y. 565, 115 N. E. 1045).

As the comptroller did not pay this award, an application was made for a peremptory writ of mandamus requiring him to do so. The Attorney General objected to the allowance of the writ on three grounds: (1) Because the papers used on the application did not show that the comptroller had been furnished by the Attorney General with a certificate that no appeal from the judgment of the Court of Claims had been or would be taken; (2) because they did not show that the Attorney General had filed with the comptroller a satisfactory abstract of title and certificate of search as to incumbrances showing that the relators were legally entitled to the award; (3) because the Court of Claims had no jurisdiction to determine the title of the petitioners, and, therefore, while the amount of damages was fixed, the question as to who was entitled to such damages was still open and undecided.

[1] A peremptory writ of mandamus was allowed by the Special Term. The Appellate Division, however, reversed the order of the court below, denied the motion for the writ, and dismissed it. Such action was founded solely upon the first of the three grounds above stated. From the order of the Appellate Division this appeal is taken.

Section 269 of the Code of Civil Procedure provides that before a judgment of the Court of Claims shall be paid there shall be filed with the comptroller a certificate of the Attorney General that no appeal from the judgment has been or will be taken by the state. We think this provision has no application to cases where appeals from such judgment have been finally decided, where no appeal lies to the Supreme Court of the United States and where we have remitted the matter to the court below to be enforced. All these facts existed in this case. They were known to the comptroller and were before him. The reason of the statute is clear. Should a claimant who has succeeded in the Court of Claims wish to be paid at once, such a certificate would reasonably be required. Two courses are before the state. It may pay or it may appeal. The alternative is no longer open. Nor could the court by mandamus or otherwise compel the Attorney General in this case to sign such a certificate. For it would be false in fact. And if the section is to be construed strictly, the mere statement that no further appeals are to be taken would not be a compliance with its terms.

[2][3][4] As to the second objection, that where lands are appropriated for public use there must be filed with the comptroller a satisfactory abstract of title and certificate of search as to incumbrances showing that the person demanding such damages is legally entitled thereto, we think the requirement has been complied with. Section 8 of the act under which this appropriation was made speaks of the duty of the Attorney General to furnish the comptroller and the treasurer all searches necessary to prove the title to the lands taken. But this duty has reference solely to cases where a settlement is made with owners of such lands. The precise objection made is that it is not shown that the Attorney General had furnished such an abstract. But such requirement not being made by the statute, equally is not made by section 269 of the Code. The abstract is to be filed. By whom is not said. Ordinarily it would be assumed that the burden of satisfying the requirements of the statute rested on him who wished for action thereunder. That this was the intention of the Legislature is implied by section 274, which provides an allowance in certain cases to the claimant for the cost of these very papers. But the abstract must be satisfactory and show that the person who demands the damages is legally entitled thereto. Satisfactory to whom, the respondent asks. To no one in any personal sense. Neither the comptroller nor the Attorney General may say arbitrarily we are not satisfied with the abstract; it does not show the claimant entitled to damages. In the last analysis the question is one of law. Is the abstract satisfactory in form? Does it show what the statute requires it to show? That question is to be answered by the courts. Undoubtedly, the comptroller does and should consult with the Attorney General. But on neither officer rests the ultimate decision. Only if there is some reasonable doubt should their rejection of the abstract be sustained. Here, however, the referee, the Appellate Division, and this court have in effect held that the abstract filed by the relators does show title in them.

[5][6] There remains what we consider the most important question-whether the Court of Claims had jurisdiction to determine the title to the land taken as between the state or one of its municipalities and the appellants. If it did not, such jurisdiction could not be conferred upon it by stipulation, and the state is not concluded by the decisions which have been made by the various courts.

Chapter 746 of the Laws of 1911 authorize the state to appropriate lands for terminals to be used in connection with the barge canals. If the land so taken belongs to the city of New York, it is not to be condemned, but is to be ceded to the state by the city. If the land belongs to other owners, it shall be appropriated in the manner provided by section 8 of the act, and the Court of Claims ‘shall have jurisdiction to determine the amount of compensation for lands, structures and water so appropriated.’

[7] Sections 263 to 284 of the Code of Civil Procedure establish a Court of Claims and regulate its jurisdiction and procedure. Section 264 declares that it shall have ‘all of the powers and jurisdictions of the former Board of Claims.’ It has also jurisdiction to hear and determine a private claim against the state, including a claim for death by negligence. The section then makes distinct regulations with regard to claims in general and claims for the appropriation of property. The Appellate Division has said that under this section the Court of Claims might not determine the question of conflicting title between claimants. People ex rel. Smith v. Sohmer, 163 App. Div. 830,149 N. Y. Supp. 276. The affirmance by us without opinion (215 N. Y. 709¹ ) of this decision does not imply approval of everything contained in the opinion of the court below. We need not and we do not now determine the effect of a judgment if the outstanding claim of title was in private persons. Such is not the question presented to us.

As a matter of practical construction at least it has been assumed that the respective interests of the state and the claimant might be settled by the Court of Claims. First Construction Co. of Brooklyn v. State of N. Y., 221 N. Y. 295, 116 N. E. 1020, is the last of the line of cases to that effect. The same assumption was made by the Attorney General in all the courts upon the trial and argument of the very claim upon which the award was based which gives rise to this proceeding. But the question is of great importance. It has never been directly decided. It is before us in this proceeding. No doubt as to our answer should remain.

The Board of Claims was created by chapter 205 of the Laws of 1883. It was given jurisdiction to hear, audit, and determine all private claims against the state, and by section 8 of the act the jurisdiction of the canal appraisers to hear claims against the state was also vested in it. The office of canal appraiser and the state board of audit were abolished.

The office of canal appraiser had existed for many years. Originally where land was appropriated for the canal by the canal commissioners, they applied to the Supreme Court for the appointment of appraisers to estimate the loss or damage occasioned to the owners. As pointed out elsewhere a question of title as between the owners and the state would not arise, for the commissioners might not apply for condemnation and at the same time raise this issue. Later the canal commissioners themselves acted as appraisers. In 1825 (Laws 1825, c. 275) two officers known as canal appraisers were created who associated with a commissioner inquired into and assessed the damages for land taken. Their office was continued by the Revised Statutes of 1829. 1 Rev. St. pt. 1, c. 9, tit. 9, art. 3, § 45. Every person intending to make a claim for the appropriation of land must exhibit it to the appraisers who...