Opinion
November 10, 1943.
Present — Close, P.J., Hagarty, Carswell, Taylor and Lewis, JJ.
On the court's own motion, the decision of this court handed down October 25, 1943 [ ante, p. 980], is amended to read as follows: Proceeding in condemnation to acquire a permanent easement for sewer purposes through a parcel of land in Roslyn. The right of appellants to this award was absolute under the findings of the court as to consequential damages and the limited release executed by the judgment creditor in respect of the six foot strip, with the unambiguous reservation of his lien against the remainder of the parcel. The finding of the extent of the damage to the parcel still vesting in the record owner required that there be an award therefor and those to whom payment thereof should be made under the undisputed facts herein were the judgment creditors, especially since no prior payment had been made or was directed to be made to the judgment debtor, as was the situation in Matter of City of New York [ Belmont Ave.], ( 218 N.Y. 721) and Van Loan v. City of New York ( 105 App. Div. 572). Subdivision 14 of section 306 of the Village Law defines "Owner" as a person having "a lien", and in subdivision 15 "Real property" is defined as including "liens by way of judgment". Section 321-r, in relation to "proof of title" recognizes the effect of "proof of liens or incumbrances thereon" in determining "ownership". Sections 321-t and 321-w authorize the payment of compensation to appellants under the above statutory definitions in relation to a lienor, et cetera. The provisions in respect to condemnation in the Greater New York Charter (L. 1901, ch. 466, as amd.) are substantially similar to those in the Village Law. Under the provisions of the former, liens of judgment creditors have been held to be liens against awards where the judgments were docketed prior to the vesting of title. ( Matter of Astoria Boulevard, 171 Misc. 1018; Matter of Konopny [ Manhattan Jail Site], 173 Misc. 552; Matter of City of New York [ Houghton Ave.], 266 N.Y. 26, 29; 2 Nichols on Eminent Domain [2d ed.] § 122.) The universal practice under the corresponding statutory provisions of the Greater New York Charter in respect of payment of awards to judgment creditors as holders of statutory liens is equally applicable to the Village Law. The factual and statutory situation in Watson v. N.Y.C.R.R. Co. ( 47 N.Y. 157) is wholly dissimilar to that herein. The special statute there involved did not contain a definition of "Owner" such as is set out in the Village Law (§ 306, subd. 14), with which we are here concerned and which includes a person holding a lien as a consequence of a judgment docketed prior to the vesting of title. The record is not clear that the title to the parcel here involved vests in the judgment debtor. As the facts have not been stipulated on this point, it will be necessary for proof to be taken under section 321-r of the Village Law. Tentative and final decrees, insofar as appealed from, reversed on the law and the matter remitted to Special Term for the entry of a decree in accordance herewith, with fifty dollars costs and disbursements to appellants.