United States v. 25.4 ACRES OF LAND, ETC.

Decision Date18 January 1949
Docket NumberMisc. No. 586.
Citation82 F. Supp. 394
PartiesUNITED STATES v. 25.4 ACRES OF LAND, ETC., BOROUGH OF BROOKLYN, KINGS COUNTY, NEW YORK, et al.
CourtU.S. District Court — Eastern District of New York

Harry T. Dolan, Sp. Asst. to Atty. Gen. of United States, for petitioner-plaintiff.

John P. McGrath, Corporation Counsel, of New York City (Bernard H. Friedman, of New York City, of counsel), for City of New York.

BYERS, District Judge.

By this motion, the City of New York seeks an order "modifying, revising, amending and/or correcting paragraph numbered `4'" of an order dated April 21, 1947, D.C., 71 F.Supp. 255, which provides that the United States have judgment against the City in the sum of $131,987.95, with interest at 6% per annum from December 22, 1941.

The amendments sought are: (a) To reduce the rate of interest to 4%. (b) To start the interest running as at the date of the said order, April 21, 1947, instead of December 22, 1941.

These changes are urged in spite of the fact that the said order was appealed to the then Circuit Court of Appeals for the Second Circuit, by Notice of Appeal dated May 9, 1947, from each and every part of said order, as well as from the whole thereof. A cross-appeal was taken by the Government with respect only to an award which was made to the City to cover the cost of relocating an electric power line.

It appears that the provisions of the said order comprehended in this motion were not asserted to be erroneous in either the written or the oral argument presented to the reviewing Court in connection with said appeal, which was heard on March 9, 1948.

A decision was rendered on May 19, 1948, United States v. City of New York, 2 Cir., 168 F.2d 387, 391, the final sentence of the opinion reading: "The judgment is therefore affirmed."

An appropriate mandate was issued by the Clerk of the (then) Circuit Court of Appeals, on June 4, 1948, and filed in the office of the Clerk of this Court on the following day. On June 14, 1948, an order on said mandate was duly signed and filed, and copy thereof was duly served on the City on June 15, 1948.

Notice of this motion bears date of November 26, 1948.

The foregoing recital will suffice to indicate that this Court is without power to grant the motion: Home Indemnity Co. of New York v. O'Brien, 6 Cir., 112 F.2d 387, cited with approval in Morris et al. v. Securities and Exchange Commission, 2 Cir., 116 F.2d 896, at page 898. See also United States v. Certified Securities, Inc., 9 Cir., 151 F.2d 188; Borough of Munhall v. United States, D.C., 71 F.Supp. 241.

The matter of the award of interest having of necessity been presented to the reviewing Court, and equally comprehended in its decision, and the mandate having been filed and the judgment on appeal having been made the judgment of this Court, there is no further power which the Court could exert, if it would.

While the Home Indemnity case dealt with a matter falling under Rule 60(a) (b) of the Rules of Civil Procedure, 28 U.S. C.A., which in terms, Rule 81(a) (7), apply, as to condemnation proceedings, only to appeals, the bearing of that decision is the more compelling since, as to such proceedings, there is no rule cited to indicate that reconsideration of any subject may be entertained once the term has expired in which final order or judgment has been made or entered.

This aspect of the matter is not affected by paragraph 6 of the order of April 21, 1947, which provides:

"6. That this proceeding be held open for the entry of such further orders, decrees, and judgments as may be necessary to carry out and effectuate the objects and purposes sought to be accomplished in this proceeding, and the distribution of all awards made herein."

That is a precautionary paragraph, the plain purpose of which is to state that final disposition of issues affecting any particular damage parcel or claim is not to be construed as terminating the entire condemnation proceeding, which remains open for the disposition of issues affecting any other damage parcel or claim.

It is mere surplusage, designed to embody an undisputed and evident truth. Manifestly it cannot be tortured into a construction that the trial court thereby intended to reserve to itself the power to reconsider and change a final determination of issues which had been adjudicated; or that an appellate court would be willing to review an order or judgment which the lower court had thus endeavored to retain in solution, pending the action of the appellate tribunal, and even thereafter.

The only present application of the reservation is to a claim of the City concerning the relocation of the outlet to the Classon Avenue sewer, which thus far has not been adjudicated.

It thus appears that the motion must be dismissed for lack of power to entertain it.

If these views are clearly erroneous, and disposition on the merits is required, the same result will follow, for the following reasons:

(a) As to the rate of interest:

This matter arises in connection with the withdrawal by the City of $300,000.00 of the $1,478,509.00 deposited by the Government on September 19, 1941, in the registry of the Court with the filing of the petition in condemnation, as the estimated just compensation payable to all whose property was being taken; $300,000.00 thereof was allocated to the City "* * * for any interest or easement in any and all lands taken, together with street improvements".

On December 22, 1941, pursuant to order granted at the instance of the City, that sum was by it withdrawn.

The final order and judgment fixed the award to the City at $168,012.05, and the sum of $131,987.95 with interest at 6% per annum from the date of withdrawal (December 22, 1941) as the sum for which the Government should have judgment against the City.

Since by the terms of the statute, 40 U.S.C.A. § 258a, the Government would have been required to pay 6% interest on any deficiency by which the sum deposited in court (or even rendered available to the claimant, United States v. 3.71 Acres of Land, etc., D.C., 50 F.Supp. 628) would prove to fall short of the final award to the City, it seems obvious that an overpayment which has been withdrawn and later adjudged to be refunded, should bear interest at the same rate.

The legal rate of interest in New York is 6%. General Business Law, McK. Consol.Laws, c. 20, Art. 25, Sec. 370. It is proper that just compensation for lands taken by the Government in condemnation proceedings should include an award of interest at the rate prevailing in the State in which the property lies. United States v. Rogers et al., 255...

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1 cases
  • Sykes v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 11, 1968
    ...similar to the instant case. The only decision passing on the precise question holds to the contrary. See United States v. 25.4 Acres of Land, 82 F.Supp. 394 (E.D.N.Y.1949). However, we feel the New York District Court overlooked the considerations we have herein set 3 An award of $240,600 ......

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