#### The Brooklyn, Queens County and Suburban Railroad Company, Plaintiff, *v.*Maria A. Bird and The City of New York, Defendants.

(Supreme Court, Kings Special Term,

December, 1912.)

New trial — motion for, denied — newly discovered evidence.

Where the newly discovered evidence, upon which was based a motion for a new trial in a litigation relating to land between streets but not in the street, consists of certain street opening proceedings instituted more than thirty years ago, which, if introduced in evidence, could not change the result of the new trial, the motion will be denied.

Motion for a new trial on the ground of newly discovered evidence.

*684M. E. Finnigan, for plaintiff.

Watson & Kristeller, for defendant Bird.

Archibald R. Watson, corporation counsel, for City of Hew York.

Crane, J.

The newly discovered evidence upon which this motion for a new trial is made consists of the proceedings to open Marion street and Hopkins avenue instituted in 1869 and *1872,*respectively. In these proceeding’s it was determined that the ownership of that portion of the cut-off taken for street purposes was the property of the Brooklyn, and Jamaica Turnpike Company. It is claimed that this determination in the street opening proceedings is *res adjvdicaia*as to owners of property in the cut-off not taken for street purposes.

. The street opening proceedings were taken pursuant to the charter of the city of Brooklyn (Laws of 1854, chap. 384, as amd.), which required the commissioners in their report to give the names of the persons interested in the property taken and the amount to be assessed. The plaintiff asserts that under this. charter the commissioners were to determine all questions of title and that their report was final as .to all parties having actual or constructive notice of the' proceeding. ’ I agree in so far as .the report of the commissioners upon title would be conclusive as against the city, but I doubt whether it would be conclusive as between' different claimants. ' The purpose of condemnation proceedings .is to procure land as speedily and readily as possible for public improvements, and the chief requisites are that the purpose shall be a public need and that the property be not taken without just compensation. Consequently and according to the procedure in nearly all the states the proceeds, in ease of a disputed claim of title, are deposited with some custodian to await subsequent litigation. Thus by chapter 86 of the Laws of 1813, section 184 (An act to reduce several laws relating particularly to the city of New York into one act), it was provided that, where an *685award was paid to a party in the proceeding not entitled thereto, another party rightfully claiming it could maintain an action against the person receiving the award to recover the amount so wrongfully paid. This has remained the law of the city of New York ever since, and is at present found in the Greater New York Charter. § 1441.

Under such a provision the report of the commissioners as to title could not be considered *res adjudicata*as to the rightful claimant, but would be as to the city. Bo claim thereafter, of course, could be made against the city; it would be protected in paying the award in accordance with the report of the commissioners. DePeyster v. Mali, 92 N. Y. 262; Matter of Corporation Counsel, 42 App. Div. 198; Matter of Commissioner of Public Works, 135 id. 561; N. Y. C. & H. R. R. R. Co. v. Mathews, 144 id. 732.

Bb such provision as is found in the charter of the city of Bew York was contained in the charter of the city of Brooklyn, and the question arises whether or not a like action for money had and received could not even then be maintained by a rightful claimant against the person wrongfully receiving the award; in other words, if in condemnation proceedings under the charter of the city of Brooklyn the commissioners reported the title in A. and A. received the amount of the award, could B., the rightful owner, sue A. to recover the amount in an action for money had and received ? It is conceded that B. would have no action against the city, but I believe that B. could maintain such an action against A. The purposes of the condemnation proceedings are not to establish title of disputing claimants, but to procure the property for the city for public purposes, paying the apparent owner the compensation awarded, without further liability but without barring an action by the rightful owner against the person receiving the award. Tamm v. Kellogg, 49 Mo. 118; Matter of William Street, 19 Wend. 678-688; Embury v. Connor, 3 N. Y. 511; O’Hare v. Chicago M. & N. R. R. Co., 139 Ill. 151; Spring Valley Water Works v. San Francisco, 22 Cal. 434; Lewis Em. Dom., §§ 635, 659, 894, and cases cited.

My conclusion, therefore, is "that the proceedings opening *686Mai ion street and Hopkins avenue were conclusive as to the city of Brooklyn, but were not *res adjudicaba*as to the rightful owner in an action brought against the railroad receiving the award.

But, assuming that under the charter of the city of Brooklyn the proceedings would be *res adjudicaba*and a bar in a subsequent action brought by the rightful claimant against the railroad receiving the award, this would only apply to the real estate taken, which would be the property lying within Marion street and Hopkins avenue. The property involved in this suit is between streets and not in the street and, therefore, would not be affected by the street opening proceedings; neither would the fact that the lands in this litigation and between streets were assessed in the name of the railroad company for the cost of the street opening proceedings be *res*adjudicaba> as an assessment is made -upon the land and not against the owner, and title is of little consequence. In fact, section 15 of chapter 384 of the Laws of 1854 as amended by chapter 63 of the Laws of 1862 required the ‘commissioners of estimate to give the names of the owners or *occupanbs*of the lands assessed for improvements.

If a new trial were granted in this case the introduction of the street opening proceedings above mentioned could not, for the reasons stated, change the result, and, therefore, the motion, for a new trial upon the discovery of this alleged new evidence must be denied.

• Denial of the motion would also be justified upon the ground that, in a case where the title was so thoroughly investigated and briefed before, submission to the court, the subsequent idea or thought that street opening proceedings might affect the question does not bring such proceedings within the class of newly discovered evidence warranting a new trial.

Motion for a new trial denied, without costs.