Cassidy v. Mayor

Ingraham, J. There are two objections which are fatal to plaintiff’s recovery in this action. Upon the confirmation by the supreme court of the report of the commissioners of estimate and assessment relative to the opening of the street mentioned in the complaint, the order confirming such report became a judgment pronounced on a full hearing of the parties, and conclu [72] sive in its character as to all questions litigated, or which might have been litigated, in the proceedings. Dolan v. Mayor, 62 N. Y. 475. And this principle has many times been reaffirmed by the court of appeals. The last case is Donnelly v. City of Brooklyn, 121 N. Y. 17, 24 N. E. Rep. 17. It is a little difficult to see why the confirmation of the report is not conclusive, between the owner of the property and the defendant, as to the person to whom the award is payable. By section 970 of the consolidation act, the commissioners were required to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage, or of the benefit and advantage over and above the loss and damage, as the case may be, to the respective owners, lessees, parties, and persons respectively entitled unto or interested in the lands, tenements, etc., required for the improvement. Such owners, lessees, parties, and persons respectively entitled unto or interested in the lands, tenements, etc., are parties to the proceedings. They have the right to appear before the commissioners and before the court, and the commissioners and the court have power to correct any error in the report, and, upon the report being confirmed, it is conceded to be conclusive as to the amount of the damages awarded, and as to the amount of the assessment for benefit. The ownership of the award was a question that could have been litigated before the commissioners and before the court; and when the commissioners report that an individual is entitled to the award, and such report is confirmed by the court, I do not see any reason why such an adjudication is not as conclusive, as between the owner of the property and the defendant, as any other adjudication necessarily involved in the proceeding. Such an adjudication is not conclusive as between claimants to the fund; for by section 184 of the act of 1813, re-enacted in section 993 of the consolidation act, it was expressly provided that where the sum reported by said commissioners in favor of any person or persons, whether named or not in such report, shall be paid to any person when the same shall of right belong to some other person, it shall be lawful for the person to whom the same ought to have been paid to sue for and recover the same as so much money had and received to his or their use by the person or persons, respectively', to whom the same shall have been so paid; but, as between the owner of the property and the defendant, one of the questions upon which the commissioners were to report, and which the court, by its order confirming the report, adjudicated upon, was the individual to whom the award should be paid. In the case of Spears v. Mayor, 87 N. Y. 372, the court of appeals appear to have held that this judgment was not conclusive as to the persons entitled to the damages awarded, although at page 374 the court say: “If the commissioners had made the award distinctly to Matthews for his mortgage interest, then no other person could have claimed such award, and the city would have been absolutely bound to pay him, upon principles laid down in Re Department of Parks, 73 N. Y. 560.” In that case the rule is stated as follows: “Under the statute of 1813, there is ample opportunity for the correction of all mistakes of law and fact, and, unless they are corrected in the proceedings before the confirmation, all parties interested are precluded from complaining of them. The award, after confirmation, becomes in the nature of a judgment, which cannot be assailed collaterally. It is conclusive upon all parties as a judgment.” In this case the award of the commissioners was to James C. Kennedy, for the party-wall, $900; and it is for that award that the plaintiff seeks to recover. It would seem, therefore, that such an award made by the commissioners to Kennedy for his interest in a party-wall comes within the rule, as stated in Spears v. Mayor, that no other person could claim it, and the city was bound absolutely to pay him. But, whether that is so or not, it is clear that the city would be justified in paying Kennedy, unless it had received a notice of an adverse claim to the fund. See Spears v. Mayor, supra. The [73] evidence is that the city did pay Kennedy the amount of the award; and unless, at the time of such payment, the city actually had notice of the adverse claim, the city was protected by such payment, and the plaintiff cannot recover. It is not claimed that any express notice was given to the city, but it appeared that, prior to such payment, plaintiff had commenced an action against Kennedy, claiming the title to the property, and had filed a lis pendens; and it is claimed on behalf of plaintiff that the filing of such Us pendens was a notice to the city that she claimed this award. We do not think that the notice of Us pendens was a notice to the city of the adverse claim. On the confirmation of the report, the title of the property taken for the improvement vested in the city, and the city became bound to pay to the person named, or to the owner of the property, the amount awarded as the value of the property taken, and such obligation of the city became a right of action. No specific fund was set apart as belonging to the owner of the property, the title to which vested in such owner. The plaintiff was, in contemplation of law, a party to the proceedings, and her Us pendens was subject to the judgments in that proceeding. The city was therefore justified in assuming that the direction of the court directing the money to be paid to Kennedy was, as between plaintiff and defendant, a protectionfor the payment of such money, notwithstanding any prior claim or general notice that the plaintiff had given that she claimed an interest in the property, and that any claim that would entitle plaintiff to the award made before the adjudication had been determined by the order of the court confirming the report of the commissioners adversely to the plaintiff. ! We are also of the opinion that the action of the plaintiff in seeking to re-1 cover from Kennedy the amount paid to him by the city was a ratification of such payment, and legalized it as between plaintiff and the city. The action given to the plaintiff against the person to whom the payment had been made was by the statute declared to be an action for money had and received. Such an action depends upon the receipt by the defendant of money belonging to the plaintiff; and, when plaintiff sought to recover such money from Kennedy, it legalized the payment by the city to Kennedy, thus discharging the city. The plaintiff could not occupy the position of claiming that the city had paid her money to Kennedy, and obtain a judgment against Kennedy for such money, and at the same time claim that the city was still her debtor and owed money to her. See Fowler v. Bank, 113 N. Y. 454, 21 N. E. Rep. 172, where the court say: “But if a trustee is bound to pay money to a beneficiary as a debt due from him to the beneficiary, then, if he makes payment to another person, he has not paid the debt, and the money paid is not, in fact, the property of the beneficiary. In such case the beneficiary may ignore the payment, and sue the trustee as his debtor, or he may ratify and adopt the payment, and sue the person receiving the money as his debtor; but he cannot do both. There is in such a case a breach of trust or not, as he may elect; and his election, once effectually made, is conclusive forever. ” In this case the defendant was, upon the confirmation of the report, liable to pay to the owner of the property the award made by the commissioners. That money was paid to Kennedy. Assuming that plaintiff’s position is correct,—that she then had a cause of action against the city for the amount of the award as owner of the property, —she could either sue the city, disregarding the payment to Kennedy, or sue Kennedy, affirming that her money had been paid to Kennedy by the city. She made her election to sue Kennedy, and obtained against him a judgment for the amount paid by the city to him, and by such action ratified that payment by the city as a payment on her account. We think, therefore, that plaintiff, upon the facts proved, was not entitled to recover, and that the exceptions must be sustained, and a new trial ordered, with costs to defendant to abide the event. [74] Daniels, J., concurs in the conclusion.