In re Cauldwell

156 A.D. 661, 141 N.Y.S. 734, 1913 N.Y. App. Div. LEXIS 5861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1913
• Status: Published

Opinion

Scott, J.:

The relator is the executrix of the owner of property on East One Hundred and Sixty-sixth street in the city of New York. The grade of this street was changed in the year 1893, and a claim for damages arising therefrom was filed with the change of grade damage commission pursuant to chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws of 1894, and chapter 747 of the Laws of 1905. On December 22, 1909, the commission made an award of §5,000 to the relator, and its certificate to that effect was filed in the office of the comptroller December 27, 1909.

Thereafter and on June 25, 1910, the Legislature passed an act. (Laws of 1910, chap. 701) inserting in the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30) the following provision: “§ 59-a. Interest on damages for change of grade. Whenever awards shall be lawfully made, pursuant to any statute of this State, for damages sustained by real estate or any improvements thereon by reason of any change of grade of any street, avenue or road in front thereof, the award for the principal amount of damages sustained shall bear interest at the rate of six per centum per annum from the time of the change of grade to the time of the payment of the award.”

The relator claims that under this enactment she is entitled to be paid interest upon the amount awarded to her from the date of the change of grade. To this extent she has been upheld by the Special Term. She also- claims to be entitled " to compound interest, but in this regard she failed to convince the Special Term. The only question we deem it necessary to consider is whether she is entitled to interest as awarded by the order appealed from.

Prior to the enactment of the statute quoted above claimants for damages resulting from a change of grade were not entitled to recover interest, because the statute did not so provide. (People ex rel. Central Trust Co. v. Stillings, 136 App. Div. 438; 198 N. Y. 504.) To meet this omission in the statute, chapter 701 of the Laws of 1910 was passed, and it was held that under it claimants were entitled to interest upon all awards made after its passage: (People ex rel. Central Trust Co. v. Prendergast, 202 N. Y. 188.) The question now presented is whether under this statute, the only one providing for interest in cases like the present, a claimant to whom an award was made before the passage of the act is entitled to recover interest upon such award.

The language of the statute does not, seemingly, so provide, and this appears to have been the view of the Court of Appeals, although the precise question was not presented and of course was not intended to be decided. Judge Vajvn, who wrote for the court in People ex rel. Central Trust Co. v. Prendergast (supra), said: “The words used cover all awards made after the passage of the act, for the command is i whenever awards símil he lawfully made * * * the award for the principal amount of damages sustained shall bear interest,’ etc. It embraces in terms al-1 awards thereafter made * *

Since the recovery of damages for a change of grade is purely statutory, no more can be awarded in respect of such damages than is specifically authorized by some statute. The statute invoked by the relator does not specifically require that interest should be paid iipon awards made before its passage, and there is, therefore, no authority for its allowance.

The order appealed from is, therefore, reversed, in so far as it awards interest to the relator, and is otherwise affirmed, with ten dollars costs and disbursements to the defendant, appellant.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order reversed to the extent stated in opinion; otherwise affirmed, with ten dollars costs and disbursements to the defendant, appellant. Order to be settled on notice.