In re the City of New York

254 A.D. 685, 3 N.Y.S.2d 536, 1938 N.Y. App. Div. LEXIS 7136

Opinion

[In first proceeding.] Order denying petitioners’ motion for an order directing payment to them of the award for damage parcel No. 589, with lawful interest, affirmed, with ten dollars costs and disbursements. While we are of opinion that when the property here involved was dedicated to the city of New York, “ in trust, nevertheless, that the same shall be used as lands upon which ” a public disposal plant shall be erected and operated, the trust continued only for such time as the property was so used, and that the title thereto reverted to the owners when such use was abandoned by the appropriation of the property to street purposes by the city in condemnation proceedings (Real Prop. Law, § 114, subds. 2 and 4; Downes v. Dimock & Fink Co., 75 App. Div. 513), nevertheless, the petitioners’ sole remedy is in an action at law to recover on the theory of money had and received pursuant to the provisions of the Greater New York Charter (§ 983) since the award here sought to be recovered was made to a designated owner in the final decree, entered on the 18th day of December, 1917, and paid to that designated owner, the city of New York. (Matter of City of New York, 209 N.Y. 127.) Lazansky, P. J., Hagarty, Adel and Close, JJ., concur; Carswell, J. concurs in result. [In second proceeding.] Order denying petitioners’ motion for an order directing payment to them of the award for damage parcels Nos. 8 and 8A, with lawful interest, affirmed, without costs, on the authority of Matter of City of New York [Queens Boulevard] (ante, p. 685), decided herewith. Lazansky, P. J., Hagarty, Adel and Close, JJ., concur; Carswell, J., concurs in result.