HARDIN, P. J.
Chapter 214 of the Laws of 1888 contains the charter of the city of Binghamton, and in the seventh title sundry sections are found relating to proceedings to open streets. Defendant, under those several sections, instituted its proceedings to open Henry street extension. Section 4 defines to considerable extent the duties of commissioners appointed to appraise the damages to be awarded to parties whose lands or interests therein are taken in virtue of the proceedings. In the language of that section, it is said:
“They shall ascertain and award to the respective owners of property to be taken, and to all persons or corporations interested therein, such damages therefor (deducting the benefits to the adjoining lands) as in their opinion shall be’ a just compensation to them respectively.”
This language, in connection with the general provisions found in the statute, seems to suggest that the acquisition is to be made of all the properly rights of the owners, and that the award to be' made is to be in compensation, not only for the principal ownership, but to compensate “all persons interested therein.” At the time the award was made, the persons holding the mortgage and other liens upon the property were interested therein; and, although not in form made parties to the proceeding by name, it is to be supposed that, the proceedings being of a public character, and the notices being required to be published prescribed by the statute, the persons having interests in the property were apprised of the proceedings; and, although they did not in form appear, it is to be presumed that it was the duty of the commissioners to ascertain and determine the extent and value of the respective interests taken or affected by the condemnation proceedings.
In section 10 it is provided that:
'Immediately after the final determination of all proceedings in which any award shall have been made, the common council shall cause to be paid or tendered to the respective owners the amount awarded to each respectively.”
We think this language, construed in connection with the language found in section 4, which we have just quoted, indicates that all persons interested in the premises sought to be acquired are interested, and ought to be assumed to be interested, in the distribution of the award, which is intended to work a cancellation or extinguishment of the ownership or interest in the property acquired. Defendant’s common council did not comply immediately with that part of section 10 which we have just quoted, by paying to the owners of the fee, or to the persons interested in the premises by way of liens, the amount of the award. After the fund was raised by the defendant for the purpose of liquidating the award, [419]*419it was not immediately paid over, as a dispute arose as to what parties were properly entitled to it. It was claimed by the plaintiff in this action, as well as by the purchaser of the premises, or his assignee, under the mortgage sale. Apparently, the section undertakes to provide for a case where a dispute arises as to the proper parties to receive the award; and in the subsequent language of section 10 it was provided that if for any reason the owner shall refuse to receive the same, or to be incapacitated from receiving the amount, “or the right thereto be disputed or doubtful, the common council may make payment of such amount to the office of the clerk of the county of Broome, as clerk of the supreme court” This part of the statute seems to contemplate that where a dispute or a doubt arises, such as was existing between the parties owning or interested in the premises condemned, it should be within the province of the common council to omit paying to either one of the parties. In the case in hand there was a dispute, and it may be said to have been doubtful whether the owner of the fee or the lienors interested therein should receive, at the hands of the common council, the money that was placed under its power and supervision to compensate for the property acquired through the condemnation proceedings. The common council, finding that the right to the award was disputed or doubtful, was authorized by the section to “malte payment of such amount to the office of the clerk of the county of Broome, as clerk of the supreme court.” The mode of ascertaining the parties claiming to own the award or to be interested therein is provided for in the section. It is made the duty of the clerk “to make a report to the supreme court at its first term, special or general, held thereafter in the county, of the amount thus deposited; * * * and the supreme court shall have authority, and it shall be its duty at such term of the court, to order the investment of such money or the payment over on the ascertainment of the persons entitled thereto.” It is quite apparent that it was the duty of the common council, as soon as the dispute or doubt arose, to follow the provisions of the statute just referred to; and it is probable that a mandamus would have been allowed to quicken the action of the common council if it was dilatory. It seems that the statute provides for a summary mode of a distribution of the award to the parties lawfully entitled to receive the same. It seems to be the spirit of the statute that the city is not authorized to take possession of the property until complying with the provisions which have just been referred to.
Near the close of section 10 we find the following words:
“Upon such, payment or tender, or payment to the clerk being fully made, the land may be taken by the city, pursuant to the resolution of the common council, declaring their determination to make such improvement, and the said street or other improvement may then be opened, worked and used."
Upon complying with this provision of the statute, the defendant was authorized to enter into possession of the premises for which the award was allowed. We see no other provision in the charter authorizing expressly the defendant to enter upon the premises sought to be acquired by the condemnation proceedings. . It does [420]*420not seem to follow that because the commissioners omitted to specify in detail to whom the damages awarded by them belonged, under all the facts and circumstances relating to the property, or because they, in terms, awarded the damages to the Pattersons owning the fee, the rights of the persons interested therein should be ignored or cut off.
In Utter v. Richmond, 112 N. Y. 610, 20 N. E. 554, it was said that, where land is taken for public use, the damages awarded take the place of the land in respect to all the rights and interests dependent upon and incident to it, and in the course of the opinion delivered in that case it was said:
“No doctrine could be more clearly just than that, when land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon and incident to it."
In the case in hand the land was mortgaged at the time of instituting the proceedings, and remained incumbered by the mortgage. It was upon record, and the defendant and all its officers are presumed to have notice thereof.
In Cassidy v. City of New York, 62 Hun, 359, 17 N. Y. Supp. 71, it was said that, where an award is made to a specific person, the city is not bound to pay the award to that person, and thus leave the true owner to his action against such person.
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HARDIN, P. J.
Chapter 214 of the Laws of 1888 contains the charter of the city of Binghamton, and in the seventh title sundry sections are found relating to proceedings to open streets. Defendant, under those several sections, instituted its proceedings to open Henry street extension. Section 4 defines to considerable extent the duties of commissioners appointed to appraise the damages to be awarded to parties whose lands or interests therein are taken in virtue of the proceedings. In the language of that section, it is said:
“They shall ascertain and award to the respective owners of property to be taken, and to all persons or corporations interested therein, such damages therefor (deducting the benefits to the adjoining lands) as in their opinion shall be’ a just compensation to them respectively.”
This language, in connection with the general provisions found in the statute, seems to suggest that the acquisition is to be made of all the properly rights of the owners, and that the award to be' made is to be in compensation, not only for the principal ownership, but to compensate “all persons interested therein.” At the time the award was made, the persons holding the mortgage and other liens upon the property were interested therein; and, although not in form made parties to the proceeding by name, it is to be supposed that, the proceedings being of a public character, and the notices being required to be published prescribed by the statute, the persons having interests in the property were apprised of the proceedings; and, although they did not in form appear, it is to be presumed that it was the duty of the commissioners to ascertain and determine the extent and value of the respective interests taken or affected by the condemnation proceedings.
In section 10 it is provided that:
'Immediately after the final determination of all proceedings in which any award shall have been made, the common council shall cause to be paid or tendered to the respective owners the amount awarded to each respectively.”
We think this language, construed in connection with the language found in section 4, which we have just quoted, indicates that all persons interested in the premises sought to be acquired are interested, and ought to be assumed to be interested, in the distribution of the award, which is intended to work a cancellation or extinguishment of the ownership or interest in the property acquired. Defendant’s common council did not comply immediately with that part of section 10 which we have just quoted, by paying to the owners of the fee, or to the persons interested in the premises by way of liens, the amount of the award. After the fund was raised by the defendant for the purpose of liquidating the award, [419]*419it was not immediately paid over, as a dispute arose as to what parties were properly entitled to it. It was claimed by the plaintiff in this action, as well as by the purchaser of the premises, or his assignee, under the mortgage sale. Apparently, the section undertakes to provide for a case where a dispute arises as to the proper parties to receive the award; and in the subsequent language of section 10 it was provided that if for any reason the owner shall refuse to receive the same, or to be incapacitated from receiving the amount, “or the right thereto be disputed or doubtful, the common council may make payment of such amount to the office of the clerk of the county of Broome, as clerk of the supreme court” This part of the statute seems to contemplate that where a dispute or a doubt arises, such as was existing between the parties owning or interested in the premises condemned, it should be within the province of the common council to omit paying to either one of the parties. In the case in hand there was a dispute, and it may be said to have been doubtful whether the owner of the fee or the lienors interested therein should receive, at the hands of the common council, the money that was placed under its power and supervision to compensate for the property acquired through the condemnation proceedings. The common council, finding that the right to the award was disputed or doubtful, was authorized by the section to “malte payment of such amount to the office of the clerk of the county of Broome, as clerk of the supreme court.” The mode of ascertaining the parties claiming to own the award or to be interested therein is provided for in the section. It is made the duty of the clerk “to make a report to the supreme court at its first term, special or general, held thereafter in the county, of the amount thus deposited; * * * and the supreme court shall have authority, and it shall be its duty at such term of the court, to order the investment of such money or the payment over on the ascertainment of the persons entitled thereto.” It is quite apparent that it was the duty of the common council, as soon as the dispute or doubt arose, to follow the provisions of the statute just referred to; and it is probable that a mandamus would have been allowed to quicken the action of the common council if it was dilatory. It seems that the statute provides for a summary mode of a distribution of the award to the parties lawfully entitled to receive the same. It seems to be the spirit of the statute that the city is not authorized to take possession of the property until complying with the provisions which have just been referred to.
Near the close of section 10 we find the following words:
“Upon such, payment or tender, or payment to the clerk being fully made, the land may be taken by the city, pursuant to the resolution of the common council, declaring their determination to make such improvement, and the said street or other improvement may then be opened, worked and used."
Upon complying with this provision of the statute, the defendant was authorized to enter into possession of the premises for which the award was allowed. We see no other provision in the charter authorizing expressly the defendant to enter upon the premises sought to be acquired by the condemnation proceedings. . It does [420]*420not seem to follow that because the commissioners omitted to specify in detail to whom the damages awarded by them belonged, under all the facts and circumstances relating to the property, or because they, in terms, awarded the damages to the Pattersons owning the fee, the rights of the persons interested therein should be ignored or cut off.
In Utter v. Richmond, 112 N. Y. 610, 20 N. E. 554, it was said that, where land is taken for public use, the damages awarded take the place of the land in respect to all the rights and interests dependent upon and incident to it, and in the course of the opinion delivered in that case it was said:
“No doctrine could be more clearly just than that, when land is taken for public use, the damages awarded are to take the place of the land in respect to all the rights and interests which were dependent upon and incident to it."
In the case in hand the land was mortgaged at the time of instituting the proceedings, and remained incumbered by the mortgage. It was upon record, and the defendant and all its officers are presumed to have notice thereof.
In Cassidy v. City of New York, 62 Hun, 359, 17 N. Y. Supp. 71, it was said that, where an award is made to a specific person, the city is not bound to pay the award to that person, and thus leave the true owner to his action against such person. The award or fund raised by the city to discharge the same stood in the place of the land, and the city, when parting with the fund, would be entitled to take possession of the land. The fund remained for the purpose of satisfying the rights of the owners and lienors upon the land. “The fund was the product of a paramount proceeding, which cut off every right, * * * both of owners and incumbrancers, so that there could be neither sale nor foreclosure as to that; and instead there remained an equitable lien upon the proceeds, to be worked out bv the court empowered to distribute.” In re City of Rochester, 136 N. Y. 90, 32 N. E. 702.
In Gates v. De La Mere, 142 N. Y. 313, 37 N. E. 121, it was said in the course of the opinion of Andrews, C. J., viz.:
“If all the property covered by the mortgage had been taken by the city, the defendant could have made no claim on the award except upon any surplus remaining after payment of the mortgage debt. * * * In law, the final award represented the actual value of the land, no more and no less; and the land was primarily pledged as security for the mortgage, and the priority of lien was transferred from the land to the award, and could not be subordinated to a lien subsequently created by Denninger in favor of the defendant.”
It may be said in equity that the award represents that portion of the land or the interest therein taken by the condemnation proceedings. Magee v. City of Brooklyn, 144 N. Y. 269, 39 N. E. 87. Inasmuch as it appears in the case that the common council had directed the payment of the money to the clerk of the county of Broome, as the clerk of the supreme court, and that such payment has been made, it seems reasonable that the plaintiff, if, under the circumstances of this case, he is advised to make claim to the moneys, should bé limited to the remedy prescribed in section 10 of the charter, to [421]*421wit, an application to the court held in the county of Broome for directions “for the payment over on the ascertainment of the persons entitled thereto.”
Inasmuch as the foregoing views, if adopted, lead to a reversal of the judgment, it is not deemed necessary to discuss the numerous questions raised by the defendant as to the validity of the condemnation proceedings instituted by it, conducted step by step until it reached the stage where its common council authorized the payment of the money which it had received in liquidation of the assessment made to meet the damages for taking the lands to open Henry street. Inasmuch as the conclusion has been stated as above, it is not necessary, in order to determine the right of the plaintiff, to hold the present judgment to authoritatively pass upon the question. Inasmuch as the defendant has been active in instituting the proceedings, and conducting them, and in claiming benefits under them, it may be said, under such circumstances, its assertion that the condemnation proceedings are irregular, does not come to the court with very much grace. However, we omit to pass conclusively upon the question as to the validity of the proceedings at this time.
Judgment reversed, and a new trial ordered, with costs to abi<|e the event.
MERWIN, J., concurs. MARTIN, J., not voting.