In re De Wint — 2 Cow. 498

Majority

p. 498

In the matter of the petition of De Wint and De Wint.

Headnote

On ordering a rule to pay which have thiT court,‘“as belonging to ners in the YOTk°f under the powers of tíon toC°tiarg¡ and improve streets, this court will, if the claim be doubtful, require security to refund on the claim’s turning out to be unfounded. - . - ■ ;

The petition was for the payment of certain moneys awarje¿ to the owners cf a certain piece or parcel of land described in the said petition, on the enlarging and improvfog of Maiden lane from William street to Pearl street in the second ward of the city of New York. (See 1 Cowen, 595, S. 0.)

On producing an affidavit of the regular publication in the New York American, a daily newspaper printed in the city of New York, for six successive weeks, of notice of an application to be made at the first, day of this term, for a rule

p. 499

requiring James Fairlie, Esquire, one of the Clerks of this Court, to pay to the petitioners the sum. awarded by the commissioners of estimate and assessment on the. enlarging and improving Maiden lane, &c., to the owners of all that certain piece or parcel of land described in the report of-the commissioners and in the petition as follows, viz. (describing the premises,), and on motion of

J I. Drake, for the petitioners-

On granting this rule, it is proper to remark, that the 184th section of the act to reduce the several laws, relating particularly to the city of New York, into one act, under which this proceeding is conducted, authorizes its to secure, dispose of, and improve the money, when paid into Court, as we shall direct. (2 R. L. 418.) This act contains no clause, like the act for the partition of lands, (1 R. L. 511, s, 7,) expressly authorizing the Court, on directing a rule to pay over the moneys, to require security to refund, with interest, in case it shall at any time appear that the parties receiving the money are not entitled to it; and we require no security in this case. The omission is not because we doubt our power .under the general words cited, but because the rights of the petitioners are very clearly and satisfactorily made out. In a case where there is doubt as to the title, of the claimants, we shall exact the same security, in cases like this, as is required on ordering out moneys paid into this Court under the act for the partition of lands.

Motion granted.