Trs. of New York & Brooklyn Bridge v. Clark

• Decision Date: 31 January 1893
• Citation: 32 N.E. 1054,137 N.Y. 95
• Parties: TRUSTEES OF NEW YORK & BROOKLYN BRIDGE v. CLARK et al.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 95

32 N.E. 1054

TRUSTEES OF NEW YORK & BROOKLYN BRIDGE

v.CLARK et al.

Court of Appeals of New York.

Jan. 31, 1893.

Appeal from supreme court, general term, second department.

In the matter of the petition of the trustees of the New York & Brooklyn Bridge to acquire title to real property in the city of Brooklyn, county of Kings, and state of New York, against Mary Caroline Clark, widow of Richard S. Clark, deceased; William Irving Clark, John Mason Knox, and Edward Bryant Aymar, trustees of the trusts under the will of R. S. Clark, deceased; Eleanor Leroy, Catharine Augusta Lawrence, Helen Redman, Catharine Bigelow, Mary C. Leroy, Edward H. Bigelow, Jr., Frederick Jansen, James Lynch, William K. Gilbert, Richard Pavlenys, and Anton Asterias; and John Doe and Richard Roe, whose proper names are to plaintiffs unknown. From an order of the general term dated September 16, 1892, (21 N. Y. Supp. 233,) reversing an order of the special term vacating an award of appraisers, and ordering a new appraisal by new appraisers, plaintiffs appeal. Order modified.

Bergen & Dykman, (James C. Bergen, of counsel,) for appellants.

George W. Wingate, for respondents.

EARL, J.

This is a condemnation proceeding to acquire lands for the New York & Brooklyn Bridge Company. Commissioners of appraisal were appointed, and, the land being in the possession of tenants, it became necessary to appraise the value of the interest of the tenants, as well as the interest of the fee owners. They awarded to the owners, ‘for the fee of said premises,’ the sum of $104,625, and a separate sum to each of the tenants. The award to the owners ‘for the fee’ must be understood to be for the fee subject to the leases. The appraisers in such a case may pursue either one of two methods. They may appraise the entire value of the premises, and then apportion such value among the fee owners and tenants, or they may, in the first instance, appraise the value of each separate interest, and thus ascertain the entire value. The process in each case must obviously be substantially the same. They must, in any event, appraise the value of each interest separately. We cannot say which method was pursued in this case, and it does not matter. The award of the appraisers, having been confirmed by the general term, is not reviewable here. Such has always been the law in this state in this class of cases, and there is nothing in the recent revision (3 Bliss, Code Civil Proc. c. 23) of the condemnation law changing it. Railroad Co. v. Marvin, 11 N. Y. 276;In re New York C. & H. R. R. Co., 64 N. Y. 60;In re Delaware & H. Canal Co., 69 N. Y. 209;In re Kings Co. El. R. Co., 82 N. Y. 95;In re Prospect Park & C. I. R. Co., 85 N. Y. 489;In re Board of Street Opening, etc., 111 N. Y. 581, 19 N. E. Rep. 283; In re New York & B. Bridge, 115 N. Y. 652, 21 N. E. Rep. 1118; In re Metropolitan El. R. Co., 128 N. Y. 600, 27 N. E. Rep. 1076; In re Board of Street Opening, etc., 133 N. Y. 434, 31 N. E. Rep. 316.

It is the award of the appraisers which, having been confirmed, is not reviewable here. The action of the general term may be such as to be the subject of review. If it should undertake to modify an award by increasing or diminishing it, or to exeicise any other jurisdiction in reference thereto not conferred upon it, its action would be reviewable here. In this case the landowners moved at special term for confirmation of the award. The motion was opposed by the bridge trustees, and the court refused to confirm the award, vacated it, and ordered a reappraisal by new appraisers. From the order of the special term the landowners appealed to the general term, and there the order of the special term was reversed, and judgment was rendered September 16, 1892, (21 N. Y. Supp. 233,) confirming the award as to each defendant, with interest from April 30, 1892, the date of the special term order. The appellants claim that this provision in the judgment as to interest was unauthorized and erroneous, and we are of that opinion. Before interest can be allowed in any case, it must be by virtue of some contract, express or implied, or by virtue of some statute, or on account of the default of the party liable to pay, and then it is allowed as damages for the default. Here there was no contract obligation to pay interest upon the award, and there was no statute imposing or requiring its payment, and it only remains for inquiry whether the bridge trustees were in default in not paying the award on the 30th day of April. The court, at special or general term, cannot alter the award or increase its burden, except by the imposition of costs in ...