In re Art-street — 20 Wend. 685

Majority

p. 685

In the matter of Art-street, in the city of New-York.

Headnote

5n street eases, where money is awarded to the estate of a person deceased, it is not necessary on an application to the court by the persons entitled to suck estate for an order that the money be paid over, to show a publication of notice of such application in a public newspaper; it is otherwise, however, where the money is awarded to owners unknown.

An the latter case, also, security for refunding the money on the happening of certain events, will be required; but not in the former.

In the improving of this street, a piece of ground was taken, which the commissioners of estimate and assessment in their re

p. 686

port, stated to belong to the estate of John Vark deceased, and that in consequence of the taking of such ground, they had allowed as damage, the sum of $8,600 to the estate of John Vark deceased; which sum has since been paid into court. A petition is now presented by the children of John Vark deceased, stating that they are the heirs and devisees of their father ; which petition is verified by their affidavits and by a certified copy of the last will and testament of John Vark, and is accompanied by a map on which is delineated the premises taken; and application is now made for a rule directing the clerk to pay over the moneys thus deposited to the petitioners or their attorney. Notice of the application was given to the counsel of the corporation, but was not published in any of the newspapers of the city.

Mr. Justice Cowén granted the application, observing that this case differed from the cases where moneys are awarded to owners unknown, in which in addition to what had been done by the petitioners here, the court required the publication in a newspaper of a notice of the intended application. In those cases also, the court had latterly required security to be given by the petitioners for the return of the money when required so to do ; but In this case neither the publication of a notice or security were necessary. The papers would be referred to the clerk, and if found to be right, a rule for paying over the moneys would be entered.