Edelmuth v. Prendergast — 202 N.Y. 602

Majority

p. 602

In the Matter of the Application of Henry Edelmuth, as Executor of Adolph Edelmuth, Deceased, Appellant, for a Peremptory Writ of Mandamus against William A. Prendergast, as Comptroller of the City of New York, Respondent.

Headnote

Matter of Edelmuth v. Prendergast, 144 App. Div. 895 , reversed.

(Argued May 30, 1911;

decided June 13, 1911.)

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 13, 1911, which reversed an order of Special Term granting a motion for a temporary writ of mandamus to compel the defendant to pay an award made in street opening proceedings and denied said motion.

Benjamin Trapnell and Joseph A. Flannery for appellant.

Archibald R. Watson, Corporation Counsel (Joel J. Squier and George E. Draper of counsel), for respondent.

The award to the relator did not hear interest until after a demand made on the comptroller for its payment. The appeal from the order of confirmation did not stay relator’s right to make such demand, but the demand made on July 10, 1910, was, in our opinion sufficient. Therefore, the relator is entitled to interest on the award from thirty days after that date until the award be paid.

The order of the Appellate Division should he reversed, and that of Special Term modified, so as to direct that a peremptory writ of mandamus issue directed to the respondent commanding him to pay the award made to the relator, with interest from August 10, 1910, until the date of payment thereof, without costs to either party in any court.

Cullen, Oh. J., Gray, Haight, Werner, Willard Bartlett, .Chase and Collin, JJ., concur.

Ordered accordingly.