In re the New York Elevated Railroad

Headnote

Appraisals of damages for tailing lands for railroad purposes— the second report is final— 2 B. S. (Jthed.)p. 1553, see. 18 — from what time the owner is bound to pay interest, on refunding the difference between the first and second award.

Section 18 of the general railroad act (3 It. S. [7th ed.], p. 1553) provides that when the first report of the commissioners, appointed to appraise the damages to be awarded to the owner of lands to he taken for railroad purposes has been set aside and a new appraisal has been ordered, “ the second report shall be final and conclusive on all the parties interested. If the amount of the compensation to be paid by the company is increased by the second report, the difference shall be a lien on the land appraised and shall be paid by the company to the parties entitled to the same, or shall be deposited in the bank as the court shall direct, and if the amount is diminished the difference shall be refunded to the company by the party to whom the same may have been paid, and judgment therefor may be rendered by the court, on the filing of the second report, against the party liable to pay the same. ”

Reid, that the statute only required the person receiving the first award to repay the difference between the first and second award, and that he was not obliged to pay interest thereon except from the time that the final report had been confirmed by the court and a copy of the order of confirmation had been served upon him.

Motion for a final judgment upon the confirmation of a second report of commissioners appointed to determine the damages to be awarded to one Rufus Story for a privilege, easement or other interest possessed by him in Front street, in the city of New York.

By the first report, which was finally confirmed on March 10, 1885, the sum of $15,000, with interest from the date of the order, and the costs and expenses of the proceedings, were awarded to Story, to whom they were paid by the company on March 21,1885,

Upon an appeal taken by the company to the General Term, the report was set aside and a new appraisal was ordered by new commissioners, who, on November 27, 1885, made a report by which’ they awarded to Story the sum of $7,000, which report was, in November, 1886, confirmed by the General Term. The petitioner claimed that it was entitled to a judgment for the difference between the amount paid under the report of the first commissioners and the amount of the award under the second report, with interest from the date of the payment.