Majority
p. 152BRYAN v. ALTIERI et al. (Supreme Court, Appellate Division, First Department. December 30, 1898.)
Headnote
Eminent Domain—Condemnation of Land for Parks — Mortgages — Foreclosure—Frivolous Answer.An answer, in an action to foreclose a mortgage, alleging that previous to the commencement of the suit the property, pursuant to Laws 1894, c. 746, authorizing the city of New York to take property for public parks, had been condemned for a public park, and the mortgage lien thereby transferred to the award of the «commissioners, is not frivolous.
Appeal from special term, Hew York county.
p. 153Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
Action by Henry C. Bryan against Pasquale Altieri and others to foreclose a mortgage. Defendant Nelson H. Salisbury answered, alleging that previous to the commencement of the suit, and pursuant to Laws 1894, c. 746, authorizing the condemnation of land by the city of New York for public parks, proceedings were commenced by the mayor, aldermen, and commonalty of the city to have the premises condemned for a public park; that such proceedings were duly had, and the estimated value of the premises was fixed and allowed by the commissioners of appraisement; that by virtue of such proceedings the title to the property was vested in the mayor, aldermen, and commonalty of New York; and that the lien of plaintiff’s mortgage, if any, had been transferred to the commissioners’ award, and the claim and demand therefor against the mayor, aldermen, and commonalty of the city of New York. There was an order for judgment on such answer as frivolous, and defendant appeals.
Reversed.
H. G. Atwater, for appellant
A. Nelson, for respondent.
In view of the opinion in the case of Hill v. Wine (decided by this court Dec. 9, 1898) 54 N. Y. Supp. 893 , the answer in the case at bar was not frivolous.
The order should be reversed, with §10 costs and disbursements, and the motion denied, with §10 costs.