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and 121 New York State Reporter said i'eport benefit assessments were made upon the remainder of the Craigen Construction Company's land as follows: Assessments for $725.53, $205.18, $8.98, $341.97, and $687.01, upon benefit maps numbered 86, 87, 93, 94, and 96, respectively. On the 29th day of August, 1903, a demand was made in writing upon the comptroller of the city of New York, requiring him to make immediate payment of the awards set forth above, with interest thereon from the 20th day of April, 1903, the date of the report of the commissioners of estimate and assessment. In that demand no reference whatever was made to that portion of the report dealing with the benefits and assessments upon the remainder of the lands of the defendant. On the oth day of November, 1903, a motion was made by the construction company for an order directing that the comptroller pay the aggregate of the awards, with interest from the date of the report to the time of the final payment, and that he receive the amount of the benefit assessments without any interest charge thereon. This motion resulted in the order appealed from, which directed the comptroller to pay the amount of the damage awards, with interest from the date of the report of the commissioners to the time of payment, less the assessments, "without any charge for penalty interest thereon.” The order provided further that the comptroller might deduct any further inoney due by the company for taxes, said assessments and water rates, on any of the lands on which said damage parcels form the whole or any part. The city has appealed to this court, and urges the points, first, that under the provisions of section 1001 of the charter of the city of New York the Craigen Construction Company is not entitled to interest on the awards for a longer period than six months from the date of the report of the commissioners; and, second, that the company should not be relieved from all payment of interest upon the benefit assessments.

Section 1001 of the charter of the city of New York (page 426, C. 466, Laws 1901) provides, as far as is material to this question, as follows:

"All damages awarded by the commissioners of estimate and assessment, with interest thereon from the date of said report, and all costs and expenses which may be taxed, shall be paid by the city of New York to the respective persons and bodies politic or corporate mentioned or referred to in said report, or in whose favor such costs or expenses shall be taxed. Interest shall cease to run on sums awarded as damages six months after the date of the confirmation of said report unless within that time demand therefor be made upon the comptroller."

It is clear, therefore, that unless a proper demand was made upon the comptroller of the city of New York, as required by the foregoing section, before the expiration of six months of the date of the confirmation of the report, interest must cease to run upon the damage awards therein after six months had expired. The demand inade by the Craigen Company was not, under the authority of the cases, sufficient to keep the interest running against the city on the sums awarded as damages after the expiration of six months immediately ensuing upon the confirmation of the report. It was held in Cutter v. The Mayor, etc., of N. Y., 92 N. Y. 166, 169, that “where, however, a demand is necessary as a foundation for a claim of interest, it must be a distinct demand for the sum of money to which the party is then entitled. It is not enough that by some change in circumstance, brought about by his own act or the act of others, he may become entitled to it. Here the demand included more than the plaintiffs could justly claim, for until discharged of record the amount of the mortgage debt was to be withheld.” See, also, Carpenter v. City of New York, 44 App. Div. 230, 60 N. Y. Supp. 633; Fredricks v. City of New York, 44 App. Div. 274, 60 N. Y. Supp. 724. In a case of this sort interest is in the nature of a penalty or for damages for withholding payment (Cutter v. Mayor, supra; Matter of the City of New York, Montgomery Street (decided by this court March 4, 1904) 86 N. Y. Supp. 1075), and unless the demand is such that the city may safely rely upon it in making payment it does not avail the demandant to start interest running (Fredricks v. City of New York, supra). The demand of the Craigen Construction Company in the case at bar was, under this rule, insufficient, for it "included more than the plaintiffs could justly claim” (Cutter v. Mayor, supra), in that a large amount of benefit assessments, a proper offset against the amount awarded as damages, was not by the company taken into account in its demand.

It is perhaps not clear whether the order appealed from intends to relieve the Craigen Construction Company from the payment of all interest upon the benefit assessments against it or not; the language of the order is that the damages shall be paid, less the amount of the assessments, "without any charge for penalty interest thereon.” If this language is meant to indicate that the construction company is to be relieved from the payment of any other than the lawful interest of 6 per cent. upon the benefits, the order is correct; but if it means to relieve it from the payment of any interest it cannot be so characterized, for the city cannot, under principles of justice or under any provisions of the charter, be compelled to pay interest upon moneys due the company for the damages, and the property owner be relieved from the payment of interest upon the assessments.

The order should be modified by directing that the damages awarded by the commissioners be paid, with interest for six months after the date of the confirmation of the report, less the assessments, with interest at the lawful rate of 6 per cent. from the time interest accrued thereon until the expiration of six inonths after the confirmation of the report; or, which accomplishes the same result, that the amount charged against the company for assessments be credited upon the award as daniages as of the time when it was due, and interest run on the balance of the award for damages in favor of the construction company until the expiration of six months after the confirmation of the report; and as thus modified the order should be affirmed, without costs. All concur.

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(91 App. Div. 593.)

STEIN V. LYON. (Supreme Court, Appellate Division, Second Department. March 15, 1904.) 1. DEEDS-BUILDING RESTRICTIONS-CONSTRUCTION.

Plaintiff and defendant owned certain lots on Rockaway Beach, adjoining the sea on the south, both holding under deeds from a common source of title containing a covenant running with the land, prohibiting the erection of any building other than a dwelling house on the portion

and 121 New York State Reporter of the premises lying south of a strip then occupied by the tracks of a railroad. The railroad right of way was thereafter abandoned, and new tracks were subsequently laid a considerable distance north of the old line, and between that line and the new line a boulevard was constructed. Plaintiff and defendant thereafter constructed their buildings fronting on the boulevard, running back toward the beach, and crossing the line of the original railroad. Defendant's building consisted of an automobile station, but the part thereof which extended south of the old railroad line was used as a kitchen, bathroom, and stairway leading to the dwelling apartments above. Held, that the restriction only, applied to the premises south of the south line of the old railroad right of way, and

hence defendant's building was not a violation of the covenant. 2. SAME-NUISANCE

The construction and maintenance of an automobile station or garage for the entertainment of chauffeurs and their friends on the boulevard at Rockaway Beach, in a neighborhood occupied by expensive summer

residences, does not constitute a common-law nuisance. Appeal from Special Term.

Action by Virginia Stein against Whitney Lyon. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

A. Delos Kneeland, for appellant.
Charles S. Noyes, for respondent.

WOODWARD, J. The plaintiff brings this action to restrain the defendant from violating certain building restrictions which are alleged to burden with reciprocal easements the properties of plaintiff and defendant at Arverne-by-the-Sea, located at Rockaway Beach, in the county of Queens. The premises involved in the controversy are situated along the seashore, and some years ago were divided into two primary divisions, known as the Western and Eastern divisions, and these in turn were subdivided into lots. Lot No. I of the Eastern division is owned by the defendant, and the plaintiff owns lots adjacent, where she has erected an expensive summer residence. The deed under which the defendant holds his premises, and both the plaintiff and defendant derive title from the same source, provides “that neither the said party of the second part nor his heirs or assigns shall at any time hereafter erect, maintain or permit any mechanical or mercantile business or any stable or any building other than a dwelling house on the portion of the said premises lying south of this strip thereof now occupied by the tracks of the South Side Railroad of Long Island," etc. At the time of making this original deed, in 1885, in a voluntary partition, the covenant to run with the land, there was a single line of railroad running parallel with the ocean beach, and at a short distance therefrom, and the evident purpose of this covenant was to prevent the construction of business places between this railroad and the beach. Subsequently this line of railroad was abandoned, or transferred a considerable distance to the north of the old line, and between the original line and the new line a boulevard was constructed. The defendant's premises front upon this boulevard, running back toward the beach and crossing the line of the original railroad, and the plaintiff, whose premises are likewise located upon the boulevard, seeks by this action to prevent the defendant maintaining an automobile station or garage, the building fronting upon the boulevard, and the larger part of the same being concededly outside of the restrictive covenant. The important question in the case is what is meant by the provision that buildings other than dwelling houses should not be constructed "on the portion of the said premises lying south of this strip thereof now occupied by the tracks of the South Side Railroad of Long Island.” It appears from the evidence that the Rockaway Railroad Company, the predecessor of the South Side Railroad Company, did not acquire title through the premises now owned by the defendant by condemnation proceedings, but on both sides of the same it did acquire a right of way by condemnation proceedings, and in both instances this right of way was 99 feet in width, and, if this width constituted the "strip thereof now occupied by the tracks of the South Side Railroad of Long Island,” no part of the defendant's, building would be south of the strip, and it seems to us that the language of the covenant, as well as its spirit, is satisfied by this construction. A railroad occupies more than the space of its tracks. It occupies not only the ground actually used for the tracks and its supports, but the land ordinarily necessary in making repairs, storing materials, building toolhouses, flag stations, etc.; and when this covenant spoke of the "portion of the said premises lying south of this strip thereof now occupied by the tracks of the South Side Railroad” it can hardly be doubted that the parties had in mind so much of such strip as might be lawfully used by such railroad. In other words, the owner of the fee would not be permitted to build, in the absence of this covenant, within 497/2 feet of the center line of this railroad on the south. An attempt to do so would undoubtedly have been regarded as limiting the railroad in its occupation of the strip, and would have resulted in condemnation proceedings or other means of keeping the space clear, and the covenant could not have been understood as meaning anything more than that the owner of the premises should not go south of this strip necessary for the operation of the railroad and construct a building for business purposes. The learned court at Special Term has, however, taken a more restricted view of the language, and has construed it to mean the land in the physical occupation of the tracks of the old railroad, and has held this to involve about 21 feet of the rear of plaintiff's premises, making allowances for the width of the supporting grading materials. Taking this most favorable view of the language for the plaintiff, the learned court has found as a matter of fact, and this finding has support in the evidence, that "no portion of defendant's building is within the restricted area except the extension on the southerly side thereof,” and as to this he finds that the use to which this extension is devoted, that of a kitchen, bathroom, and stairway leading to the dwelling apartments above, is not in violation of the restrictive covenant. The learned court concludes, and in this we fully agree, that the defendant is entitled to judgment dismissing the complaint, but without costs.

It was urged by the plaintiff, in addition to the above proposition that the maintenance of an automobile station along this boulevard, outside of the restricted portion of the premises, was a common-law nuiand 121 New York State Reporter sance; but the learned court has found to the contrary, and we have no doubt of the correctness of this conclusion. The business of the defendant appears perfectly lawful and legitimate; he is not violating the covenant restricting the use of the premises; and the plaintiff, having had the most favorable construction of the language in support of her contention, is not entitled to the reversal of this judgment, which might be supported upon yet other grounds.

The judgment appealed from should be affirmed, with costs. All concur.

(92 App. Div. 462.)

In re GILMAN'S ESTATE. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. DECEDENTS' ESTATES-CLAIMS-COMPROMISE,POWER OF SURROGATE COURT.

Code Civ. Proc. $ 2719, providing that the surrogate may authorize an administrator to compromise or compound a debt or claim, on application, for good and sufficient cause shown, confers on the surrogate

power to permit compromise and settlement of a claim against an estate. 2. SAME-EXERCISE OF POWER.

The Surrogate's Court properly exercised its powers to permit administrators to compromise a claim against the estate for $60,000, where it appears that the claimant might have had a valid claim for the whole of it, amounting to $2,000,000, and for which a suit was pending, the claimant also promising to furnish certain necessary information to the estate as to another claim pending against the estate with which she was ac

quainted, in case the compromise was effected. Appeal from Surrogate's Court, New York County.

In the matter of the application of the administrators of the goods, etc., of George F. Gilman, deceased, for leave to compromise a claim against the estate. From an order permitting the adıninistrators to settle the claim, a minority of the next of kin of deceased appeal. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Raphael J. Moses, for appellant.
William R. Wilder, for respondent Percival.
T. S. Ormiston, for respondent Gilman.
John J. Crawford, for respondent Norton.

McLAUGHLIN, J. This appeal is from an order of the Surrogate's Court of the county of New York, permitting the administrators of the estate of George F. Gilman, deceased, to compromise and settle a claim made against it by one Helen Potts Hall. The appellant attacks the validity of the order upon two grounds: First, that the Surrogate's Court did not have the power to make the order; and, second, if it did, it was improperly exercised. These questions will be considered in the order raised.

First. It must be conceded that a surrogate's court is a court of limited jurisdiction, and has only such power as is conferred upon it

1 1. See Executors and Administrators, vol. 22, Cent. Dig. § 1092.

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