#### Harry Carpenter, Plaintiff, *v.*The City of New York et al., Defendants.

(Supreme Court, New York Special Term,

April, 1899.)

1. New York city— Lands taken for park purposes under chap. 746,. Laws of 1894 — Demand of award, to set interest running, should he made by substituted general assignee of the owner of the equity of redemption — Status of holders of mortgages.

Under .an award, in proceedings taken by the city of New York to acquire lands for park purposes (Laws of 1894, chap.' 746), made to the general assignee of the owner of the equity of redemption subject to certain mortgages’set forth in the award, the proper person to demand the award, in order to set interest running against the city, is the substituted assignee of the owner of the equity of redemption and not the holders of the mortgages, as no award has ever been made tv them and their rights in the fund' result from equity alone.

2. Same—City cannot retain water rents and- taxes' which were’ ' liens.

Where such' .an award, following the language of the statute, is made -to'specific “ owners, lessees, parties and persons in interest for ■ the loss and damage respectively sustained by reason of the taking”, and no award is' made to.- pr for the city, it cannot subsequently , retain from the award water rents and taxes which were liens, upon the premises in question prior to the confirmation of /the report of - .the commissioners.

3. Same — City liable for interest on mortgages cut off.

The city, is in such, case liable to pay interest upon thé mortgagé - liens which have been cut off by the proceeding, from the time when the last payment of interest was made thereon.

Action to compel the payment and distribution of an award made in proceedings, instituted by the City of Hew York to acquire certain lands for park purposes, pursuant to. chapter 746., Laws 1894. -

*273H. G. Atwater, fór plaintiff.

Geo. Landon; for defendant City of Hew York.

Abraham Nelson, for defendant Hartfield.

Mr. Morris, for defendant Helson.

Howard McWilliams for defendant Palmér, as trustee. . " ,

Werner, J..

This is an action brought to compel payment of an award made in proceedings instituted by the City of Hew York to acquire, certain lands for park purposes, pursuant to chapter'746, Laws 1894. Hone of the facts established upon thé trial are in dispute.' Two questions' are raised-by the defendant, the City of Hew York, which are contested by the plaintiff and the' Other defendants.- Counsel for the City insists-:" •

Eirst." That the' taxes and Croton water charges -which were due upon the premises for which the award in question was made,, up to the time when title to said premises vested in the City, are first liens against said award.

Second. That the City is not liable for interest on said award.

Section 4 of said chapter 746, Laws 1894, provides that “The said mayor, aldermen and commonalty shall,, within four calendar months after the confirmation of the said report, pay to the parr ties entitled thereto, the respective sum or sums so estimated or reported in their favor, respectively, add in default thereof, said persons oi; parties respectively, his, her 'or their respective- heirs, executors, administrators, successors' or assigns, may sue for or recover the same, with - lawful interest, .from -and after demand thereof, and the costs, of suit.” • " '

The report'of the commissioners.• was -confirmed on the 30.th day of .December, 1897. Thomas C. Campbell, .the substituted assignee for the benefit of creditors of the ównér of the equity of redemption; made a demand for the amount of said award on the. 30th day of April;. 1898. Counsel for the City urges that 'this de-mand' was insufficient to create a -claim for interest ■ bécause the award was made to .said Campbell’s 'predecessor, subject'to the' mortgages set 'forth an said award-. We think that is the. very. reason why said Campbell was the' only proper person to make the demand. Ho award was made to' the holders of said mortgages. ' *274' Their rights attach to said fund, not by virtue of any statute, or under the report, of the commissioners, but pursuant to a rule of equity by which the. fund is substituted for the land. The award having been made to the assignee of the owner of the land he was . the proper person to make the demand, notwithstanding the fact 'that under said equitable rulé he might receive little -or no part of the proceeds of the award in his favor. In the absence of any specific direction in the statute as to the form and-manner of making the demand, we are inclined to the view that the demand made herein- was sufficient, and that the City must pay - interest upon said award from the date of said demand..

The question whether the City is entitled to collect the water rents and taxes 'Which were liens upon the premises, represented by the • award in suit prior to the confirmation of the commissioners’ report must, we think, be decided adversely to the City. The language of-the report, which follows that- of the statute, is:

“ And we do'further report that the sums of money awarded by us to the respective owners, lessees, parties and persons in interest for the loss and damage respectively sustained by reason of the taking of said lands, tenements, hereditaments and premises, are more fully and at large set forth in said transcript;, that said transcript contains the number of each parcel, including- *all interests therein,*for which compensation has been awarded by us. * * * opposite to each number in said transcript is set forth the name of the owner thereof, or the names of the persons interested therein, so far as the same, could be ascertained, together with the sum or sums of money awarded by fis for the loss and damage to all'interests in the taking of each and every parcel so designated on said map.”

This language clearly indicates the character and scope of the award. It was for the loss and damage sustained by the “ owners, lessees, parties and persons in interest,” who are specifically' designated and named in the transcript which is .made a part of the report of the commissioners. The, amount of the award is not the purchase price-out of which all existing liens aré to be paid, but it represents the loss and- damage which- the owner and parties in interest who are named therein have sustained by t-he taking of the land. ' No award was made to' the City, and none was made to the assignee of the owner for the benefit of the City.

The report, is silent Upon that subject. The City was a party to the proceeding and -procured the confirmation of the report by *275which it- became vested with the title to said lands, without asking for any direction for the payment of said taxes and water rents. When the City took such title the lien of said taxes and water rents was extinguished. This is equally true of the mortgage liens.

The difference between the position of the City and that of the holders of said mortgages, is that the former has acquired the whole title to the lands, while' the latter have simply equitable liens upon the fund awarded for the loss and damage to their respective interests. If the City had intended to preserve its lien for taxes the report of the commissioners should have directed the payment thereof out of the award. The confirmation of the report without such provision is final and conclusive upon the City. Farrington v. Mayor, 83 Hun, 124.

There is no dispute as .to the priority of the several mortgages in evidence. They are:

(1.) A mortgage for $16,000, held by Miln P. Palmer as trustee under the last will and testament of Francis B. Hegeman, deceased*

(2.) A mortgage for $1,000, held and owned by the defendant Hartfield.

(3.) A mortgage for $4,000, held and owned by the defendant Kelson.,

(4.) A mortgage for $1,000, held and owned by the defendant Kelson. .

(5.) A mortgage for $2,10.8.76, held and owned by the plaintiff.

These mortgages .are respectively entitled to interest, according to the terms thereof, since the last payment of interest thereon.

The judgment of foreclosure of mortgage Ho. 4 is within the •condemnation of the rule laid down in Hill v. Wine, 35 App. Div. 520, and is, therefore, invalid.

The judgment of foreclosure on mortgage Ko. 1 is not effectual so as to entitle the defendant Palmer to recover his costs on the foreclosure action. Although the original judgment in said action was recovered on the 10th day of December, 1897, which was twenty days before the confirmation of the report of the commissioners in said condemnation proceedings, yet, having procured an order modifying said judgment, which order, was subsequently reversed, we think the defendant Palmer shoiild be directed to stand upon his mortgáge and not upon the judgment in foreclosure. This will enable him to collect the $400 of interest, which was inadvertently omitted from said judgment.

*276With reference to the judgment of foreclosure upon plaintiff’s mortgage (No. 5), it is enough to say. that it is invalid for the same reasons which apply to mortgage No. 4.

The plaintiff may have his taxable costs herein but no extra allowance. .

Let findings and decree be prepared and submitted in accord: anee with the foregoing views.

Ordered accordingly. .