Matter of Nunez , 226 N.Y. 246 ( 1919 )

In October, 1906, the Supreme Court confirmed the report of commissioners of estimate and assessment in proceedings to acquire title to West Thirteenth street, in the borough of Brooklyn, city of New York. The report made an award of $875 to the unknown owners of damage parcels Nos. 1 and 2. It imposed on the abutting premises a benefit assessment of $1,918.57. The owner of the abutting premises was stated in the report to be Anna E. Denyse. In reality, the owner was one Andrew G. Cropsey, who held an unrecorded deed. In 1914 the widow and heirs of Mr. Cropsey conveyed the land, subject to this assessment, to the petitioner, William H. Nunez, and the administrator of the estate of Mr. Cropsey assigned to Mr. Nunez the award. Both land and award thus remained in the same ownership. Thereafter Mr. Nunez conveyed the land to one Mabel Jones "subject to all valid liens for taxes and assessments," but retained the award for himself. In 1916 he made application to the court for the payment by the city of New York of the amount of the award with interest. In opposition, the city asserted the right to offset the assessment. The right was denied at the Special Term, and upheld at the Appellate Division. An appeal to this court followed.

We think the set-off of assessment against award was properly sustained. The rights of the parties must be sought in the statute as it stood in 1906 (Greater N.Y. Charter [L. 1901, ch. 466], chap. XVII, title 3). The amendments of 1915 (L. 1915, ch. 606) do not apply to proceedings already instituted under earlier statutes (L. 1915, ch. 606, sec. 4). But we think that under those statutes as under the later one, the right of set-off is implied in the statutory scheme. Compensation is to be made to those persons to whom "the loss and damage" caused by the improvement "shall be deemed to exceed" the benefit and advantage, "for the excess of the damage over and above the value of the benefit" (L. 1901, ch. 466, sec. 970). Interest is not to be demanded by the city except upon the excess of the amount to be paid over and above the amount to be received (L. 1901, ch. 466, sec. 1007, as amended by L. 1906, ch. 658). These sections do not, like the present statute (L. 1915, ch. 606, sec. 988), confer the right of set-off in so many words. We think they do confer it, however, by reasonable implication. That has been the prevailing view in the Supreme Court (Matter ofBankers' Investing Co., 141 App. Div. 591; Matter of Fischer,149 App. Div. 618; Matter of City of N.Y., 151 App. Div. 925;206 N.Y. 687; Matter of Jones, 178 App. Div. 654). A like view has been expressed, though only by way of dictum, in this court (Matter of City of N.Y. [Jerome Ave.], 192 N.Y. 459, 466,467). There is a manifest equity in the cancellation of mutual credits (Lanesborough v. Jones, 1 P. Wms. 325, 326; Green v. Farmer, 4 Burr. 2214, 2220; Lindsay v. Jackson, 2 Paige, 581). That is something to be considered in determining the intention of the legislature. Upon the facts before us, the right of set-off must find its foundation, if it has any, in the provisions of the statute (Genet v. City of Brooklyn, 99 N.Y. 296,304); but the courts will not strain to hold that manifest equity has been ignored, when the scheme of the statute suggests by reasonable implication that it has been heeded and obeyed.

The question remains, however, whether the right of set-off was extinguished by the assignment of the award. We think our holding should be that the right is unimpaired. This is not a question of counterclaim under the Code. It is one of set-off under a special statute, with an independent scheme of remedies. The award in the hands of its first owner was subject to set-off to the extent of any benefit assessments upon the lands of the same owner. The set-off did not grow out of any theory that the owner had become personally liable for the payment of the assessments. It may be that he was not personally liable. He was not named as owner in the assessment (Charter, sec. 894), and there is no evidence that payment had ever been demanded (Charter, L. 1901, ch. 466, sec. 1004). The significance of these circumstances we need not now determine. His duty to submit to set-off had no relation to his personal liability. It existed because the statute said it should exist. It continued though personal liability might be postponed or even destroyed. It grew out of his position as owner at the confirmation of the report. Not common ownership thereafter, but common ownership then, is the tie that links together assessment and award. The owner accepting the award, accepts it subject to the burden. But if that is true, he does not relieve it of the burden when he assigns it to some one else. The assignee of a chose in action is subject to all the equities which attach to the thing assigned as against the assignor (Smith v. Parkes, 16 Beav. 115; Roxburghe v. Cox, 17 Ch. Div. 520, 526;Central Trust Co. of N.Y. v. West India Improvement Co.,169 N.Y. 314). That is the general principle, of which the rule of subjection to existing set-offs is merely a phase or illustration (Smith v. Parkes, supra; Roxburghe v. Cox, supra; Beckwith v. Union Bank, 4 Sandf. 604, 610; affd., 9 N.Y. 211). This award was subject to an equity while in the hands of its first owner. It remained subject to the same equity thereafter. The statute views the benefit and the burden as parts of the same transaction, much as in cases of recoupment (Seibert v. Dunn,216 N.Y. 237). No assignment can divorce them (Seibert v.Dunn, supra; Am. Bridge Co. v. City of Boston, 202 Mass. 374;Taylor v. Mayor, etc., of N.Y., 82 N.Y. 10, 17, 18, 20). The burden follows the benefit, no matter into whose hands the benefit may pass.

The order should be affirmed with costs.

HISCOCK, Ch. J., CHASE, HOGAN, POUND, McLAUGHLIN and ANDREWS, JJ., concur.

Order affirmed.