In re Acquiring Title by City of New York

Appellate Division of the Supreme Court of New York

In re Acquiring Title by City of New York

262 A.D. 487, 30 N.Y.S.2d 500, 1941 N.Y. App. Div. LEXIS 5404

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 1941

StatusPublished

Cited by1 cases

This text of 262 A.D. 487 (In re Acquiring Title by City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Acquiring Title by City of New York, 262 A.D. 487, 30 N.Y.S.2d 500, 1941 N.Y. App. Div. LEXIS 5404 (N.Y. Ct. App. 1941).

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Opinion

Per Curiam.

This is an appeal from an order denying a motion sought to be made in condemnation proceedings after the entry of the final decree therein. The petitioner, appellant, was awarded $46,788.75 by the final decree as the owner of a damage parcel, The condemnation proceeding was what is known as a capital project proceeding as distinguished from an assessable improvement proceeding. This distinction is recognized by statute (Administrative Code, § B15-1.0). The relief sought by petition was in effect to compel the payment of the net amount of the award after the deduction of taxes, etc. Two issues are attempted to be raised on this appeal: (1) whether a certain transfer of tax lien might be attacked as void because it contains items which erroneously impose taxes on public streets, and includes same in petitioner’s taxes or whether the city might deduct the full amount of the liens; and (2) whether the rate of twelve per cent interest fixed on said tax lien when it was purchased by the city continues after vesting of title in condemnation down to the date of payment.

We think that the condemnation court properly denied the motion, because this petition sought, in effect, a summary direction for payment of the net balance of petitioner’s award for damages.

In the case of a capital project proceeding, the statute provides that in default of payment of an award for damage by the city, the owner may sue for and recover the amount due (Administrative Code, § B15-28.0). Petitioner’s proper remedy, therefore, was to proceed by plenary action. The application to Special Term did not involve the correction of any part of the condemnation decree. In fact it does not appear that either of the issues now sought to be raised was presented in the condemnation proceedings.

We are required to affirm the order appealed from because the petitioner seeks summary relief instead of proceeding by action. We do not pass on the merits of either of the two disputed issues referred to.

The order should be affirmed, with twenty dollars costs and disbursements.

Present — Martin, P. J., Glennon, Untermyer, Dore and Callahan, JJ.

Order unanimously affirmed, with twenty dollars costs and disbursements.

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Per Curiam.

This is an appeal from an order denying a motion sought to be made in condemnation proceedings after the entry of the final decree therein. The petitioner, appellant, was awarded $46,788.75 by the final decree as the owner of a damage parcel, The condemnation proceeding was what is known as a capital project proceeding as distinguished from an assessable improvement proceeding. This distinction is recognized by statute (Administrative Code, § B15-1.0). The relief sought by petition was in effect to compel the payment of the net amount of the award after the deduction of taxes, etc. Two issues are attempted to be raised on this appeal: (1) whether a certain transfer of tax lien might be attacked as void because it contains items which erroneously impose taxes on public streets, and includes same in petitioner’s taxes or whether the city might deduct the full amount of the liens; and (2) whether the rate of twelve per cent interest fixed on said tax lien when it was purchased by the city continues after vesting of title in condemnation down to the date of payment.

We think that the condemnation court properly denied the motion, because this petition sought, in effect, a summary direction for payment of the net balance of petitioner’s award for damages.

In the case of a capital project proceeding, the statute provides that in default of payment of an award for damage by the city, the owner may sue for and recover the amount due (Administrative Code, § B15-28.0). Petitioner’s proper remedy, therefore, was to proceed by plenary action. The application to Special Term did not involve the correction of any part of the condemnation decree. In fact it does not appear that either of the issues now sought to be raised was presented in the condemnation proceedings.

We are required to affirm the order appealed from because the petitioner seeks summary relief instead of proceeding by action. We do not pass on the merits of either of the two disputed issues referred to.

The order should be affirmed, with twenty dollars costs and disbursements.

Present — Martin, P. J., Glennon, Untermyer, Dore and Callahan, JJ.

Order unanimously affirmed, with twenty dollars costs and disbursements.

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Bluebook (online)

262 A.D. 487, 30 N.Y.S.2d 500, 1941 N.Y. App. Div. LEXIS 5404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-acquiring-title-by-city-of-new-york-nyappdiv-1941.

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