Opinion
March 10, 1911.
Merle I. St. John, for the appellant.
Joel J. Squier, for the respondent.
This appeal is from so much of an order as denied a motion to confirm a referee's report directing payment of interest on an award for land taken by the city from the date of vesting of title. The award was made under section 6 of chapter 130 of the Laws of 1895 (as amd. by Laws of 1896, chap. 89). The report was confirmed May 4, 1897, at which date title to the land vested in the city. The award was to unknown owners. The sole question presented is whether the city is liable to pay interest upon the award made. I am of the opinion that it is. The case in principle cannot be distinguished from Matter of Mayor, Cromwell Ave. ( 96 App. Div. 424) and Matter of Board of Street Opening (35 id. 406). It is true the award in each of those cases was made under section 992 of the Consolidation Act (Laws of 1882, chap. 410), as amended by chapter 660 of the Laws of 1893 and chapter 449 of the Laws of 1895. But section 6 of chapter 130 of the Laws of 1895 and section 992 of the Consolidation Act, in force at the time the decision was made in the two cases referred to, are substantially the same so far as the payment of interest is concerned. Section 6 of chapter 130 of the Laws of 1895 (as amd. supra) provides that "All damages awarded * * * with interest thereon from the date when the title to the lands and premises * * * shall have vested in the mayor * * * shall upon the confirmation by the court [of the said report] become due and payable by the mayor * * * and shall be paid accordingly." The words in brackets were omitted in 1896. Section 992 of the Consolidation Act (as amd. supra) provides that: "The said mayor * * * shall within four calendar months after the confirmation of the report * * * pay to the respective persons * * * the respective sum or sums so estimated * * *. All damages awarded * * * with interest thereon from the date when title to the lands shall have vested in the mayor * * * shall be paid by the mayor * * *."
It will be observed that the act under which the award here under consideration was made directs that upon confirmation the award becomes due and payable by the city and "shall be paid accordingly." By the Consolidation Act the city was required to pay the award within four calendar months after confirmation. While the words are somewhat different, the meaning, as I read the statute, is exactly the same. Under both statutes the city is directed to pay the award with interest, and not having paid, the claimant is entitled to interest until payment is made. This does not work a hardship upon the city. It could have relieved itself from the payment of interest by paying the amount of the award into court. It did not choose to do so. It took the appellant's land, and thereupon became obligated to pay what it was worth — the amount of the award. It has had the use of the money, and there is no reason why it should not pay therefor.
The fact that the award was made to unknown owners did not relieve it from the payment of interest for the reasons pointed out in Matter of Board of Street Opening ( supra).
So much of the order as is appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion to confirm the report granted, with ten dollars costs.
CLARKE, SCOTT, MILLER and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.