In re the City of New York — 218 N.Y. 721

Majority

p. 721

In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Lands Required for the Opening of Belmont Avenue. Bazena T. D. Merriman, Appellant.

Headnote

Matter of City of Few TorJc (Belmont Ave.), 172 App. Div. —, affirmed.

(Argued May 24, 1916;

decided June 16, 1916.)

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1916, which affirmed an order of the Special Term denying the motion of Bazena T. D. Merriman for an order directing the comptroller of the city of New York to pay to her $2,044.35 of the award made by the commissioners of estimate and assessment in the above-entitled proceeding, with interest thereon from July 21, 1911. The question involved is whether the holder of a deficiency judgment, obtained as the result of the foreclosure of a mortgage on premises a portion of which had been taken in a condemnation proceeding, is entitled, in the absence of statutory authority, to an order directing the comptroller of the city of New York to pay to such judgment creditor the amount of the deficiency, it appearing that the comptroller had already

p. 722

paid the entire award for the taking of the mortgaged premises to the owner of the equity.

George Lawyer, Charles Harwood and Henry T. Randall for appellant.

Lamar Hardy, Corporation Counsel (Joel J. Squier and John J. Kearney of counsel), f.or respondent.

Order affirmed, with costs, without prejudice to the petitioner’s remedy by action against the city or against Caroline Wedinger; no opinion.

Concur: Willard Bartlett, Ch. J., Hiscocic, Chase, Cuddebaoic, Hogan, Cardozo and Pound, JJ.