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Ausable Chasm Company v. State of New York

Appellate Division of the Supreme Court of New York, Third Department
Nov 1, 1934
242 App. Div. 881 (N.Y. App. Div. 1934)

Opinion

November, 1934.


Judgments affirmed, with costs in one action. Hill, P.J., Crapser and Bliss, JJ., concur; Rhodes, J., dissents and votes to reverse the judgments and to dismiss the claims on the ground that by article VIII, section 9, of the Constitution of the State of New York, the claims are not permitted. Heffernan, J., concurs in the affirmance of the judgments, with a memorandum.


I concur. I believe, however, that there should be a modification so as to allow the claimants interest from the time the payments were made. The Court of Claims apparently assumed that the allowance or disallowance of interest rests within its discretion. The enabling act (Laws of 1933, chap. 368) completely negatives that idea. The act states that the court may make an award "for such sums as it may determine to be just and equitable." Manifestly the intention was to give the claimants the right to interest. It is only by allowing that amount that they may be made whole. Interest is an incident to recovery, and in that way only can adequate compensation be made. ( Preston Co. v. Funkhouser, 261 N.Y. 140; Jacobs v. United States, 290 U.S. 13; Seaboard Air Line R. Co. v. United States, 261 id. 299, Matter of O'Berry, 179 N.Y. 285.) The act conferred no discretion upon the Court of Claims. It simply authorized that tribunal to hear, audit and determine claims and to make a proper award. Indeed if interest be not allowed actually there is no just and equitable determination in favor of the claimants. [ 152 Misc. 194.]


Summaries of

Ausable Chasm Company v. State of New York

Appellate Division of the Supreme Court of New York, Third Department
Nov 1, 1934
242 App. Div. 881 (N.Y. App. Div. 1934)
Case details for

Ausable Chasm Company v. State of New York

Case Details

Full title:AUSABLE CHASM COMPANY, Respondent, Appellant, v. THE STATE OF NEW YORK…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 1, 1934

Citations

242 App. Div. 881 (N.Y. App. Div. 1934)