In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Real Estate Required for Riverside Drive and Parkway from One Hundred and Thirty-fifth Street to Boulevard Lafayette. In the Matter of the Application of Ella L. Dorsett, Respondent, for a Peremptory Writ of Mandamus against Edward M. Grout, as Comptroller of the City of New York

In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Real Estate Required for Riverside Drive and Parkway from One Hundred and Thirty-fifth Street to Boulevard Lafayette. In the Matter of the Application of Ella L. Dorsett, Respondent, for a Peremptory Writ of Mandamus against Edward M. Grout, as Comptroller of the City of New York. New York City—Chapter 665, Laws of 1897 — Amount of Award for Lands Taken Bears Simple Interest Only. An award made under chapter 665 of the Laws of 1897 for land taken for the extension of Riverside drive in the city of New York, in which interest to the date of the report of the commissioners was added to the amount of the value of the land as damages, so that interest computed on the aggregate amount to the date of confirmation would include interest upon interest, enlarges the liability of the city, and it cannot be compelled by mandamus to pay such excess of interest since the claimant is entitled to simple interest only upon the value of the land to the time of payment'; and the fact that compound interest was erroneously demanded does not affect the claimant’s rights. Matter of Dorsett, 92 App. Div. 523, modified. (Argued November 15, 1904; decided November 29, 1904.) Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 14, 1904, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the comptroller of the city of New York to pay to the respondent herein an amount alleged to be due to her as interest on a certain award heretofore made in her favor and granted said motion. The facts, so far as material, are stated in the opinion. John J. Delany, Corporation Counsel {Theodore Connoly, John P. Dunn and Thomas C. Blake of counsel), for appellant. Respondent is not entitled to compound interest. (Carpenter v. City of New York, 51 App. Div. 586.) The respondent was not entitled to interest on the award for damages down to the payment of the same. (Barnes v. Mayor, etc., 27 Hun, 236; Frederick v. City of New York, 44 App. Div. 276; Holihan v. City of New York, 33 Misc. Rep. 249; O’Keefe v. City of New York, 176 N. Y. 297.) James A. Deering for respondent. The respondent was entitled on July 17,1903, to payment of the sum of $13,498.39, irrespective of any demand. (Matter of Board of Street Opening, 35 App. Div. 406; Matter of Mayor, 33 App. Div. 365; Matter of Mayor, 40 App. Div. 452; Matter of East One Hundred & Seventy-fifth Street, 49 App. Div. 114; Matter of Mayor, 51 App. Div. 436; Matter of One Hundred & Fifty-eighth Street, 39 Misc. Rep. 598; Matter of Board of Street Opening, 21 App. Div. 357; Devlin v. Mayor, etc., 131 N. Y. 123; Matter of Bassford, 172 N. Y. 488.) As title vested in the city on September 22, 1900, the award of damages to which the appellant was constitutionally entitled as just compensation included interest upon the value on that date until the date the award became due and payable. (Detmold v. Drake, 46 N. Y. 318; Hamersley v. Mayor, etc., 56 N. Y. 536; Matter of Mayor, etc., 40 App. Div. 281; Matter of Mayor, etc., 59 App. Div. 603; Mayor, etc., v. Stone 20 Wend, 139; Mayor, etc., v. Pentz, 24 Wend. 668; Kingsland v. Mayor, etc., 45 Hun, 205; Matter of Cromwell Ave., 96 App. Div. 424.) The respondent having on April 23, 1903, demanded payment of the award confirmed with interest from the date of the commissioners’ report, and part only of such claim having been paid on July 17,1903, was entitled to the order 'or mandate applied for. (People ex rel. v. Fitch, 78 Hun, 321; Matter of Board of Street Opening, 35 App. Div. 406; Devlin v. Mayor, etc., 131 N. Y. 123; B. B. Co. v. M. M. C. Co., 18 Misc. Rep. 681; Peck v. G. S. P. Assn., 21 Misc. Rep. 84; McCreery v. Day, 119 N. Y. 1.) [MAJORITY — O’Brien, J.] O’Brien, J. The relator applied to the court for a peremptory mandamus directing the comptroller of the city of Mew York to pay to her the sum of $225.48 as additional interest claimed by her to be due on an award made in her behalf in a proceeding to acquire lands for the Biverside drive and parkway. The court at Special Term denied thti application, but upon appeal the order ivas reversed and the, application granted The proceeding in which the award ivas made ivas for the purpose of acquiring title to certain lands of the relator for the improvement above mentioned and was had pursuant to a special act of the legislature known as chapter 665, Laws of 1897. That act provided for the appointment of commissioners to report the value of the land required. One-half of the expense of acquiring the lands was to be assessed upon the property benefited and the balance was to be borne by the city. It is admitted that the city, under the terms of the statute, became vested with title to the land on September 23,1900, and the commissioners were required to determine the value of the lands upon that day. The statute provided that this value so ascertained by the commissioners should be paid to the respective owners, with interest from the day when title vested. The commissioners did report that the value of certain parcels of land owned by the relator amounted, on the day aforesaid, to $11,500. They, however, computed separately the interest due on this sum from the date on which title vested in the city to the date of their report, which was November 29, 1902, at $1,508.41, and stated that they included this interest in their report. So the aggregate sum awarded to the relator for her lands amounted at the date of the report to $13,008.41. The controversy presented by this appeal arises over the fact that at the date of the report the interest computed by the commissioners was added to the damages, making the aggregate above mentioned, and the relator claims that interest on this amount should be paid to her from the date of the report to the time of payment, thus including in her demand interest upon interest from the time of the filing of the report. The report of the commissioners was confirmed on April 17th, 1903, and on April 23rd, following, the relator made a written demand of the comptroller requesting the payment of $13,008.41, together with interest from November 29th, 1902, the date of the commissioners’ report. On ,1 uly 17th, 1903, the comptroller paid to the relator the total of the damages included in the report and interest thereon to the date of the report, amounting to the gross sum already stated, and -he paid to her an additional amount of $264.50 as simple interest on the value of the land fixed at $11,500, computed from November 29th, 1902, thedate of the report, to July 17th, 1903, the date of the entry of the order confirming the report, amounting in all to $13,272.91. The relator claims that interest should have been computed on the gross sum contained in the report, that is, that the interest and the damages should he combined as of that day and thus a new principal formed for the computation of interest. We think that this method of computation enlarges the liability of the city under the terms of the statute. It will be seen by section 6 that two things are provided for, and the controversy in this case arises over uniting two different and distinct things at a certain stage, and thereafter treating them as one and the same tiling. The two things referred to are: 1st. The value of the land, and, secondly, the interest thereon. The duty of the commissioners was simply to ascertain and report the value of the land. They had nothing to do with the question of interest, since the statute took care of that by declaring that it should be computed from a certain date, and although the commissioners reported the value of the land and the interest as separate items, it did not change the situation. The amount found as the value of the land continued to draw interest, but not so with the item of over $1,500, which represented the interest on that value. The two things are entirely separate and distinct from each other and they should not be confused or consolidated. The relator’s claim consists of the value of her land with interest thereon computed to the date of payment. But she is not entitled to demand interest upon interest from the date of the report. The city is bound to pay to her the value of the land and the interest thereon down to the time that that obligation is discharged, but the demand for extra interest, which was the only ground of her application for the writ of mandamus, cannot be sustained. We do not think that the relator’s right to interest updn the principal of the award, or, in other words, the value of the land, was suspended in consequence of her demand for more than she was entitled to. The demand was good as a demand for what was justly due her, and the fact that she conceived herself entitled to more than the statute gives her and made a demand accordingly, does not place her in a'worse position after the demand than she occupied before. The interest still ran upon the sum fixed as the value of the land, but it did not run upon the sum which the commissioners reported as the interest on that value down to the date of their report. As already observed, they were not required to report the interest, since that was determined, not by anything contained in their report, but by the terms of the statute, which declared that the sum awarded as the value of the land, together with interest from the date when the title vested in tlu city, became due and payable by the city immediately upon the confirmation of the commissioners’ report. The relator supposed she was. entitled to interest upon the interest reported by the commissioners, but in this claim we think she was mistaken. It did not affect her right to interest upon the value of her land down to the time of payment, since that was a statutory right which was not waived or lost by reason of the erroneous demand. The order of the Appellate Division should he modified by awarding to the relator the balance of simple interest on the value of the land taken as reported by the commissioners from the date of vesting of title in the city to the date of payment, and as thus modified, affirmed, without costs to either party. Cullen, Ch. J., Gray, .Bartlett and Yann, JJ., concur; Haight and Werner, JJ., dissent. Ordered accordingly.