People ex rel. Baker v. Morgan

97 A.D. 267, 89 N.Y.S. 832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1904
• Status: Published

Opinion

Chase, J.:

The payment of the awards for land damages to the several persons over whose lands the road is laid out, is not a matter of public interest. The relator describes himself as a freeholder and taxpayer in said town, but as such he has no interest in compelling the payment of such awards.

If one or more of the persons to whom damages have. been awarded refuse to receive the same, or release to the town all claim therefor, it is manifestly to the interest of the taxpayers that the amount of such awards shall not be collected by tax. The award of damages is several; each award is independent of every other award. - .

Where awards for damages sustained by the laying out of a road I across, the respective lands of the claimants are several and iride- ¡ pendent, and not joint, the claimants cannot join in a proceeding to compel the payment of the damages by mandamus. (13 Ency. PI. & Pr. 646; High Ex. Rem. [3d ed.] §§ 434-439.)

The awards of damages for laying out the road in question being several, the relator has no interest in favor of the payment of the awards other than his own. One of the persons to whom damages were awarded expressly repudiates any connection with the effort to have the same included in the town abstract for collection and payment, and there is nothing before us to show that any of the claimants other than the relator have asked for the payment of their awards respectively, or that they desired the same audited and paid by the town. Assuming that it is made the duty of the town auditors to audit the several awards and include the same in the town abstract for collection and payment, such duty is for the benefit of the persons severally to whom the awards for damages are-made.

The appellants insist that the first order appealed from, which ^ order expressly provides for the audit of the amount of the award to each of the persons to whom damages were awarded and the-collection of the same by a tax, was not authorized, and such claim, seems to be good, . . .

It is not necessary for us to consider whether the order could not now be modified so as to require the audit and collection of the-relator’s claim only. The relator did not ask the defendants' to-audit and collect his award only, but he included in his request the amount of 'the awards to each of the other persons to whom damages were awarded. . He claimed then, as he has claimed since, that, the audit of such awards to each of the persons to whom the-award was made and the collection of the same by tax was a public duty.. The relator does not now ask that the orders be amended or modified and we think under all the circumstances disclosed by the record that the orders should be reversed and the relator left to such further application to the defendants or to the courts as he shall be-advised, on which application many of the numerous questions, arising on this appeal can be avoided.

All concurred.

Orders reversed and writ of mandamus quashed, without costs..