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have been made a party to the foreclosure action, but that the right to do so should be granted only when satisfactory reasons are shown why the personal liability was not prosecuted in the foreclosure suit itself. It was pointed out by Judge Rapallo in Equitable Life Ins. Soc. v. Stevens, 63 N. Y. 341, at page 346, that under the Revised Statutes— "so far from being made compulsory upon the court to grant such permission in all cases, the general rule was against it, and special circumstances must be shown to justify a separate proceeding at law."

So, also, it was said in Scofield v. Doscher, 72 N. Y. 491, at page 495:

"The aim of the statute is to dispose of the matter in one proceeding."

In Matter of Marshall, 53 App. Div. 136, 65 N. Y. Supp. 760, the plaintiff had made the original mortgagors parties defendant, but, finding some difficulty in serving them, had entered an order striking their names out, expressing a willingness to forego any right to a deficiency judgment against them for the sake of hastening the case. An order permitting him, after sale, to sue these same parties for a deficiency, was reversed by this court; the rule being reiterated that such leave should be given with caution, and especially so when the mortgagees voluntarily refrained from seeking a deficiency judgment in the foreclosure action.

An affidavit submitted by one of the plaintiffs shows that in electing not to proceed against Frank Slater in the foreclosure suit he was actuated by much the same considerations which moved the plaintiff in the case last cited, for he says:

"I knew that the security that I had against the property was more reliable than the personal responsibility of these defendants, and verily believed, if I could hasten the matter to a decree, that the property would bring enough to satisfy the amount of the bond and mortgage."

As to Isaac Slater, the reasons against allowing him to be sued, seem to be unanswerable for he was not only made a party to the suit, but was served with process, so that a deficiency judgment could appropriately have been applied for. But not only was no such relief demanded against him, but he was expressly informed that no personal claim was made against him, the natural result of which would be to prevent him from taking any means to protect himself.

There is much reason for considering the service of this notice as an express waiver of any right to hold him for the deficiency. At the least it furnishes sufficient ground for refusing leave to sue him. As to Joseph Slater, no explanation whatever is given why he was not made a party defendant, and it affirmatively appears that no difficulty would have been found in serving him. We are of opinion that no sufficient reason was shown why any of the appellants should now be sued for the deficiency.

The order appealed from is therefore reversed, with $10 costs and disbursements, and the motion for leave to sue denied, with $10 costs, All concur.

and 146 New York State Reporter

In re BELMONT STREET IN THE CITY OF NEW YORK.

In re SWAIN et al.

(Supreme Court, Appellate Division, First Department. November 6, 1908.) 1. EMINENT DOMAIN (§ 242*) - PROCEEDINGS TO ASSESS COMPENSATION-CONCLUSIVENESS OF AWard.

Commissioners were appointed in a proceeding to acquire title to land by condemnation and damages were awarded to respondent, the commissioners' report expressly stating that they did not allow interest thereon. The award was confirmed and demand made on the comptroller for payment with interest from the time title vested in the city, which was refused. A motion was made to compel the comptroller to pay the award under Greater New York Charter (Laws 1901, p. 426, c. 466) § 1001, providing that upon the comptroller's failure to pay an award he may be compelled to do so upon the application of the person entitled thereto. which motion was not opposed by the city, and an order was entered directing its payment, with interest thereon. Greater New York Charter (Laws 1901, p. 419, c. 466) § 990, provides that interest on an award, upon the vesting of title in the city, shall be allowed by the commissioners as part of the compensation to the owners. Held, that the confirmation of the commissioners' report was conclusive and final until set aside, and the court had no power to allow interest in a collateral proceeding to compel payment, even though the motion was not opposed.

[Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 242.*] 2. EMINENT DOMAIN (§ 247*)-PROCEEDINGS TO ASSESSMENT-COMPENSATIONINTEREST ON AWARD-NECESSITY OF DEMAND.

In eminent domain proceedings by the city to take land, if the owner claimed interest on the award under Greater New York Charter (Laws 1901, p. 419, c. 466) § 990, providing that interest shall be allowed by the commissioners as a part of the compensation to owners for land taken, he must make his claim therefor before the commissioners, and on refusal to allow it in their report he must oppose its confirmation.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 640; Dec. Dig. § 247.*]

3. EMINENT DOMAIN (§ 249*)-REMEDY OF OWNERS-DEFENSES-IRREGULARITY OF ORDER ALLOWING INTEREST.

Where the interest on an award for land condemned by the city was not allowed in the report of the commissioners, as required by Greater New York Charter (Laws 1901, p. 419, c. 466) § 990, so that a subsequent order in a collateral proceeding allowing interest was wholly irregular and contrary to law, the city was not estopped to deny the owner's right to payment of interest.

[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 249.*]

4. APPEAL AND ERROR (§ 221*)-OBJECTIONS NOT TAKEN BELOW.

Though an order granting a motion for interest on an award of damages in eminent domain proceedings by a city was not opposed, it being wholly irregular and contrary to law, the order will be reversed on appeal by the city without costs to either party on appeal, since if the motion had been opposed, it would not have been granted.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1363; Dec. Dig. § 221.*]

Appeal from Special Term, New York County.

In the matter of proceedings for the opening of Belmont street, in which Harold Swain and another moved to compel payment of an award. From an order denying a motion to set aside an order allowFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ing interest on the award, or to have the order reopened and the matter reheard, the city appeals. Reversed, and order vacated, upon conditions.

Argued before INGRAHAM, MCLAUGHLIN, HOUGHTON, CLARKE, and SCOTT, JJ.

John P. Dunn, for appellant.
Harold Swain, for respondent.

MCLAUGHLIN, J. In May, 1904, commissioners were appointed in the proceeding to acquire title to Belmont street, from Clay avenue to Morris avenue. They subsequently made a report by which they awarded to the respondent, for damages to his premises, designated as Nos. 9 and 10 on damage map of the commissioners of estimate and assessment, $7,500, and their report was confirmed by an order of the court on the 4th of December, 1907, and notice thereof given to the comptroller, with a demand for payment of the same, together with interest thereon from the 26th of November, 1906, the time when it is claimed the title to such parcels vested in the city. The award was not paid, and a motion was thereafter made, under section 1001 of the Greater New York Charter (Laws 1901, p. 426, c. 466), to compel the payment of the award, together with interest upon the same from the time stated. By reason of an oversight or neglect upon the part of the corporation counsel, no opposition was made to the motion, and on February 5, 1908, an order was entered directing the payment, with interest from the time stated. The comptroller refused to obey the order, upon the gound that it was improperly granted, and thereafter a motion was made to vacate the order directing payment of the award and interest thereon, or to have the proceeding which resulted in the order reopened and the matter reheard de novo. The motion was denied, and the city appeals.

The conclusion at which I have arrived renders it unnecessary to determine when the title to the parcels in question actually vested in the city, or whether or not the respondent is entitled to interest upon that award. Nor is the fact that the city, after it is claimed that title vested in it, assumed control over the parcels and has since retained rent for them of any importance; whether or not the respondent was entitled to interest depended solely upon the report of the commissioners of estimate and assessment. Section 990 of the Greater New York charter provides, among other things, that:

"In such cases interest at the legal rate on the sum or sums to which the owners, lessees, parties or persons are justly entitled upon the date of vesting title in the city of New York, as aforesaid, from said date to the date of the report of the commissioners of estimate shall be allowed by the commissioners, as part of the compensation to which such owners, lessees, parties or persons are entitled."

Here the commissioners not only did not allow interest to the respondent, but specifically reported that they did not do so. In their report they said:

"We further report that we have not included in our award for damage any interest on the same and have made no provisions in our assessments for benefit for any interest on the awards for the lands

and 146 New York State Reporter

lying within the lines of said Belmont street between the westerly side of Topping street and Morris avenue."

Parcels Nos. 9 and 10 on the damage map in the proceeding are included within these limits. This report was, on notice to the respondent and without opposition on his part, confirmed. If he were entitled to interest, he should have made such claim to the commissioners, and then, if they did not allow it, he should have opposed the confirmation of the report. Not having done this, then his only remedy was to appeal, or move to vacate and set aside the report and have the matter remitted to the commissioner for correction. This is the only way in which interest could be obtained. The statute is the only authority by which interest can be allowed, and the court has no power whatever, in case interest is not awarded by the commissioners, to allow it. To do so would be an illegal and unauthorized use of public funds, and no act of the city would estop it from asserting the same when payment was sought to be enforced. The report was confirmed by the court, and until set aside or reversed is a final and conclusive adjudication, binding alike upon the city and the owner, of the rights of the owner upon the one hand and the liability of the city upon the other. In this respect it is as conclusive as a judgment would be. De Peyster v. Mali, 92 N. Y. 262. The court has no power in a summary and collateral proceeding, and after the report has been confirmed, to add to it a provision increasing an award by way of interest. The order, therefore, by which interest was allowed, was wholly irregular and contrary to law. Notwithstanding the fact that the corporation counsel did not oppose, either through inadvertence, neglect, or for any other reason, the granting of the motion, the city is not estopped from insisting that its money shall only be used in the manner pointed out by statute.

The motion, however, if it had been opposed, undoubtedly would not have been granted, and for that reason I am of the opinion that the order appealed from should be reversed, without costs to either party in this court, and the order of February 5, 1908, vacated, and upon condition that the city pay to the respondent all sums received by it for rent of the premises in question since November 26, 1906, and if such condition be not complied with then the order should be affirmed, and if such order be vacated the same be without prejudice to the right of the respondent to take such proceedings as may be advised to compel the payment of the award made. All concur.

MEYER V. MINSKY.

(Supreme Court, Appellate Division, First Department. November 13, 1908.)

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1. EVIDENCE (§ 76*) — FAILURE OF PARTY TO TESTIFY FOR HIMSELF — EFFECTADMISSIONS.

When a party who is present in court fails to take the stand to rebut evidence of facts reflecting on him which are necessarily within his personal knowledge, the jury may infer that his testimony would not have For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

been favorable to himself; but it is error to charge that his silence was a positive admission of the truth of the evidence of the other party.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 96; Dec. Dig. § 76.*]

2. EVIDENCE (§ 94*)-Burden of Proof-SHIFTING of Burden.

The burden of proof is not shifted by the failure of a party in court to take the stand in his own behalf, if it originally rested upon the other party; the only result of such failure being to justify an inference that his testimony would have been unfavorable to himself.

[Ed. Note. For other cases, see Evidence, Dec. Dig. § 94.*]

Appeal from Trial Term, New York County.

Action by Margaret Meyer against Louis Minsky. From a judgment for plaintiff, defendant appealed. Reversed, and new trial granted.

Argued before PATTERSON, P. J., and MCLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.

Matthias Radin, for appellant.

John J. O'Connell, for respondent.

SCOTT, J. The defendant appeals from a judgment in favor of plaintiff, entered upon a verdict, and from an order granting a new trial. The action is brought to recover damages suffered by plaintiff in consequence of certain false and fraudulent representations alleged to have been made by defendant, whereby plaintiff was induced to deposit a sum of money in the Federal Bank when it was insolvent and upon the eve of bankruptcy. The plaintiff was the sole witness as to the representations. Her cross-examination was directed to showing that she had testified somewhat differently upon other occasions. The defendant was in court during the trial, but did not testify. At the request of the plaintiff, the court charged the jury:

"That, in view of the presence of the defendant Minsky in court and the failure to put him on the witness stand, the jury may find, from such presence and from such failure to put him on the stand, that if he were put upon the stand he would testify in favor of the plaintiff."

This was stating the rule much too strongly. Undoubtedly the fact that a party to the action who is present in court declines to take the stand to rebut evidence of facts reflecting upon him and necessarily within his personal knowledge is one which the jury are entitled to take into consideration, and from which they may infer that his testimony would not be favorable to himself. People v. Hovey, 92 N. Y. 554-560; People v. Sharp, 107 N. Y. 427-465, 14 N. E. 319, 1 Am. St. Rep. 851. The burden of proof, however, if it originally rested upon the opposite party, still remains there, and the silence of the party refusing to take the stand is not to be accepted as affirmative corroborative evidence in favor of his opponent. Under the charge quoted above, the jury were in' effect instructed that the defendant's silence constituted a positive admission of the truth of the story told by the plaintiff; whereas the most that can be said of it was that it entitled the jury to infer that, if called, he would not testify favorably to himself. The distinction is a substantial one, and, in view of

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date & Rep'r Indexes

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