In re Willcox

63 Misc. 16, 116 N.Y.S. 151

• Court: New York Supreme Court
• Decided: April 15, 1909
• Status: Published

Opinion

Dayton, J.

Application for an order directing the Pub-lice Service Commission to receive on behalf of Adolph Le Moult, lessee, notice of claim and evidence of damage to leasehold premises on Delancey street rapid transit extension, between the Bowery and Elizabeth street, borough of Manhattan. The Rapid Transit Act (L. 1891, ch. 4, as amd. by L. 1901, ch. 587, § 2) provides that claims for compensation “ shall within six months after the appointment of the commissioners of appraisal ” be exhibited to the commissioners, who shall hear testimony. “ Every person neglecting or refusing to present such claim within said time shall be deemed to have surrendered his claim for such compensation, except so far as he may be entitled, as such owner or person interested, to the whole or a part of the sum of money awarded by the commissioners of appraisal as just compensation for taking or extinguishing the property owned by said person, or in which the said person is interested.” The lease in question was received in evidence by the commissioners on the hearing of the claim of the owner of the fee within the six months’ period, which period expired November 24, 1908. Le Moult did not appear until February 25, 1909, on which day he offered to present his notice of claim; the city objected, the commission took the question under advisement, and, on March 4, 1909, decided that the “ claim is presented too late.” The city contends that Le Moult’s remedy, if he has any, is by mandamus, on the ground that this court has no power, at common law or under section 724 of the Code of Civil Procedure or the Rapid Transit Act or any statute of the State, to grant an order of the nature asked for. This may or may not be so, but the motion can be disposed of without determining that preliminary objection. The constitutionality of the Rapid Transit Act is conceded by petitioner’s counsel. The weight of authority sustains such limitations of time as in the Rapid Transit Act above quoted, and -therefore the reasons offered by the petitioner in extenuation of his failure to file his claim within that limit may not be considered, even under section 724 of the Code of Civil Procedure, which, in any aspect, can not be availed of where a statute of limitations is at bar. Petitioner’s counsel urges that the exception in the quoted provision of the Rapid Transit Act entitles him to relief, but that provision only protects the real party to an award made in the event that he has neglected to file notice of claim within the time limit; doubtless meaning an award to unknown owners. This exception is not an extension of the time limit for filing claims. This strict construction is necessary to carry out the evident intent of the statute to make this proceeding somewhat summary. As above stated, the commission has before it Le Moult’s lease. It may of its own motion place a value upon it, but whether or not that be done, it is not for me to say on this application that Le Moult is remediless against the owner of the fee after the award is made.

Motion denied. Ho costs.