De Peyster v. . Mali

Earl, J. Under and pursuant to the provisions of the act chapter 697of the Laws of 1867, the board of commissioners of the Central park laid out and established the Riverside drive, and also the Riverside park adjoining the same. The land taken for the park was owned in fee by the heirs of Henry W. T. Mali, and was bounded on the east by the westerly line of the Bloomingdale road. The plaintiff owned in fee the land in the westerly half of the Bloomingdale road, which land was subject to a perpetual easement for the public road and a private easement for the owners of the abutting land; and the Riverside drive was laid out in such road and took the place thereof, and the land thereof was appropriated for the same. The commissioners of estimates and assessments awarded to the heirs of Mali for their abutting land upward of $160,000, and for the westerly half of the Bloomingdale road opposite to their land in two awards, $6,634. The latter awards were for the fee of the land in the road, were made to the heirs of Mali as the owners thereof, were confirmed and afterward paid *268 by the city to the defendants. This action was brought to recover of the defendants the money so paid, and whether the plaintiff, upon the facts found, was entitled to recover the same is the sole question for our determination. It is too clear for dispute that the defendants had no right whatever to these awards. They had an easement in the Bloomingdale road in front of their lot for use as abutting owners. But their easement was not taken. The road was not closed, but remained open as the Riverside drive, with undiminished usefulness as a highway; and as their abutting land was taken for the Riverside park, this easement went with that as appurtenant thereto, and they ceased to have any private interest in the road.' And such was the view of the judge at Special Term, who said in his opinion: “ It is quite evident that the persons who received the awards in controversy had no right to them, for the reason that they had no interest whatever in the title to the land included within the bounds of the" highway; and any possible right or interest they might have in the enjoyment of the highway itself was in no sense restricted or diminished by its incorporation within the bounds of the Riverside drive.” But he held that as the plaintiff’s fee in the land was subject to a perpetual easement for the highway, he was entitled to only nominal damages from the city, and that, therefore, he was not justly and equitably or of right entitled to the awards, and upon that ground he defeated the plaintiff. By section 178 of chapter 86 of the Laws of 1813, it is provided that the award of the commissioners of estimates and assessments, when confirmed, “ shall be final and conclusive as well upon the said mayor, aldermen and commonalty of the city of Hew York as upon the owners, lessees, persons and parties interested in and entitled unto the lands, tenements, hereditaments and premises mentioned in the said report, and also upon all other persons whomsoever.” Under this provision, while these awards were undoubtedly excessive, they were final and conclusive, and this is so even if we must assume that they should have been but for nominal damages, *269 and that the commissioners and the Supreme Court, when it confirmed their report, mistook both the law and the facts applicable to the case, and so it has frequently been decided. (Matter of Commissioners of Central Park, 50 N. Y. 493; Dolan v. The Mayor, 62 id. 472; Matter of the Department of Parks, 73 id. 560.) If, therefore, the city had been sued for the awards before their payment, it could not have resisted a recovery for the whole amount thereof. But it voluntarily paid to the defendants, and they received, the awards made for the plaintiff’s land, and hence this is a case where the plaintiff is entitled to recover the amount of the money thus paid from the defendants, under section 184 of the same chapter, which provides that in every case where any sum awarded by the commissioners in favor of “ any person or persons, or party or parties whatsoever, whether named or not named in the said report, shall be paid to any person or persons, or party or parties whomsoever, when the same shall of right belong and ought to 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, with lawful interest and costs of suit, as so much money had and received to his, her or their use, by the person or persons, party or parties respectively, to whom the same shall have been so paid.” Under this provision to whom of right did - these awards belong? Clearly to the plaintiff. They were made for his land, and so long as the awards remained in force the city could not dispute that the amounts awarded were just and proper; and the defendants who received the awards from the city certainly could not claim when sued for them that they were excessive or inequitable, or that the plaintiff was entitled to only nominal damages where the commissioners had awarded substantial damages. Whether the awards were just or unjust, too large or too small, was a matter of no concern to them. They held the precise money awarded for plaintiff’s land and were bound to refund it to him as money they had received to his use. (Cahill v. Palmer, 45 N. Y. 480.) It was sufficient for him to show that *270 the awards were made for land owned by him, and that entitled him to the money paid for them. The judgment should, therefore, be reversed and a new trial granted, costs' to abide event. All concur. Judgment reversed.