Utter v. Richmond

• Decision Date: 05 March 1889
• Citation: 20 N.E. 554,112 N.Y. 610
• Parties: UTTER v. RICHMOND.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 610

20 N.E. 554

UTTER

v.RICHMOND.

Court of Appeals of New York.

March 5, 1889.

Appeal from supreme court, general term, First department.

This action was brought in 1884 by Mary J. Utter against William T. Richmond, to recover the amount of an award made by the board of assessors, and confimed by the board of revision and correction of assessments, of the city of New York, for damages to the premises known as ‘Ward No. 32,’ in block 1142, in the Twelfth ward of said city, caused by closing the Bloomingdale road. The premises, until 1868, had a front on the Bloomingdale road, which was a highway in public use since about the year 1705. The lot was owned in 1864 by the Rev. Thomas M. Peters, D. D., who sold it in 1866 to Frank A. Utter, taking back a bond secured by a mortgage thereon for a part of the purchase money. The mortgage was in 1867 assigned to Frances R. Williams, and by the latter, in September, 1869, to Thomas M. Peters, trustee, etc., of the estate of Sarah A. Richmond, deceased. In 1874, Utter conveyed the premises, subject to the mortgage, (which was assumed by the purchaser,) to one Wagner. In 1877, Dr. Peters, as trustee, etc., foreclosed the mortgage, and the premises were duly sold under the decree therein, but for a suminsufficient to satisfy the mortgage debt, there being, as shown by the report of the referee, on November 10, 1877, a deficiency of $1,363.66, for which the plaintiff in the action of foreclosure was entitled to enter judgment against Frank A. Utter. In January or February following, Utter paid to Dr. Peters, trustee, the sum of $200, and no judgment for deficiency has been entered. The Bloomingdale road was duly closed by the filing of the map of the commissioners of the Central park, March 7, 1868, at which time F. A. Utter was the owner of the premises. On December 4, 1880, the assessment for closing said road was confirmed, and therein was included and confirmed the award of $1,770 to ‘unknown owners.’ The award was claimed by all the parties to this action; and on or about the 4th of April, 1881, the plaintiff and the trustee of Mr. Richmond both demanded of the comptroller of the city payment of the award. Frank A. Utter assigned his interest in the claim for damages to J. Amanda McMann in December, 1877, and January 13, 1881, the latter assigned all her interest therein to the plaintiff, who is the wife of Frank A. Utter. On the 15th of September, 1884, the city of New York, under the order of the court, paid the award to the city chamberlain. Dr. Peters subsequently resigned as trustee, and William Thomas Richmond was appointed in his place, and substituted as defendant herein. Upon the trial before the special term the sole question of fact on the testimony was whether the claim for the deficiency had been satisfied in full. The court found that the payment of $200 by F. A. Utter was made in consideration of the forbearance to enter judgment, and directed judgment for the defendant Richmond, which was affirmed by the general term, and the case comes here on appeal by plaintiff from that decision

E. C. Boardman, for appellant.

Kitchel & Jelliffe, (John A. Beall, of counsel,) for respondent.

FINCH, J.

The Bloomingdale road was closed by the filing of the map of the commissioners of the Central park in 1868. One of the lots fronting on that road, and so damaged by its closing,...