In re Riverside Park — 58 N.Y.S. 1029

Majority

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In re RIVERSIDE PARK. Appeal of TIEMANN et al.

(Supreme Court, Appellate Division, First Department.

June 30, 1899.)

Headnote

1. Eminent Domain—Adverse Claimants—Review of Decision.

In 1891 two claimants of land taken for a city park appeared before the commissioners, who sustained respondent’s claim and awarded it the damages. In 1899 an order was entered, on the application of respondent, directing the city to pay the award to respondent, which was done. After-wards the defeated claimant made a motion to vacate the order directing the payment and for a reference of the claims, which was denied. Held, that it was proper to deny the motion, since the defeated claimant should have appealed from the order of confirmation entered in 1891.

2. Same—Money Had and Received,

The remedy .of the defeated claimant, if any, is to sue respondent for money had and received, as authorized by New York Charter, § 1002.

Appeal from special term, New York county.

In the matter of the application of the city of New York to acquire title to lands for Riverside Park. Appeal from an order denying petition of Daniel F. Tiemann to vacate an order directing the city to pay to respondents a certain sum for land taken for the park, and to appoint a referee to determine the rightful owners of such money.

Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

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Clarence L. Barber, for appellants.

Anthony P. Porter, for respondents.

Some time prior to December 31, 1891, proceedings were taken under chapter 496 of the Laws of 1885 by the city of New York to acquire title to certain lands for the extension of Riverside Park, and to that end commissioners were appointed to determine the damages to the respective landowners and to make an award therefor. The city of New York, and the appellants and the respondents herein, appeared before the commissioners, and each claimed to own a certain piece or parcel of land taken, and by reáson thereof demanded the award for damages. The commissioners sustained the claim of the respondents, and, by a report which was duly confirmed by an order entered on the 31st of December, 1891, made an award to them, under the name of the “Tiemann Color Works,” for the damages sustained. On the 14th of February, 1899, an order was made and entered, without notice to the appellants, on the application of the respondents, directing the city chamberlain to pay the award to them, and he made the payment, as directed in the order, upon the 16th of that month. After the award had been paid, a motion was made to vacate the order directing the payment, and for the appointment of a referee to take proof of, and to hear and determine, the claim of the appellants herein to the award. The motion was denied, and from the order denying the same this appeal is taken.

" We are of the opinion that the motion was properly denied. The appellants appeared before the commissioners, and knew of the determination made by them. They knew that the award for damages was not made to them, but to the Tieman Color Works, a hostile and adverse claimant, and, if not satisfied with the award, they should have appealed from the order of confirmation. That order was entered in 1891, and they could not wait until 1899, and then, as a matter of right, after the payment had actually been made by the city to another claimant, have the whole proceeding opened, and a determination made of their claim to the award. Having failed to appeal from the order confirming the award, or to take any proceedings in the matter whatever looking to a determination of their claim, for the length of time stated, they must be deemed to have acquiesced in the award, so far as permitting the payment to be made to the respondents.

If the respondents were not entitled to receive the money paid to them by the city, and the appellants were legally entitled to it, then the appellants can maintain an action against the respondents to recover the same for money had and received. This right is expressly given by statute. Section 1002 of the charter of the city of New York provides that if an award shall be paid by the city “to any person or persons, or party or parties, whomsoever, when the same shall of right belong to or should have been paid to some other person or persons, or party or parties, it shall be lawful for the person or persons, or party or parties, to whom the same ought to have been paid, to sue for and recover the same.” Whether or not the appellants have any claim to the award depends entirely upon whether they had, at the time the land was taken by the city, the legal title to the same, and the

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proper way to determine that question is in an action brought for that purpose.

The order is right, and should be affirmed, with $10 costs and disbursements. All concur.