Gilfeather v. Grout

The petitioner is the owner of certain premises situated at Coney Island, known 'on the assessment map of the grading of Surf avenue as assessriient No. 35. In a proceeding instituted in 1891 for' the' grading of Surf avenue the .property of the petitioner was assessed for the sum of $2,843.10. This' assessment remained unpaid, and in 1899 the Legislature of this State enacted chapter 522 of the laws of that, year, which provided that, upon the payment of one-third of the original assessment the various officials having a record of such assessment upon the hooks and documents in their offices should cancel the same. Sectipn 1, which contained this provision, concluded with the following sentenceThe payment- herein-before provided for may be made within- ninety days after the passage' of this act with interest at the rate' of six per centum per annum, from the day of its passage.” / ' V

Section 2 provided : “Any person -interested who shall not avail himself of the privilege afforded by'the foregoing section, shall have no right to make payments except on the following terms: He shall pay one per centum interest for each calendar, month upon the sum directed to he paid by .this act from the time of the passage ’-thereof, and all rights to make such payments are extended only to and shall cease at the end of the present calendar year with three days added thereto, after wliich timé thé installments of assessment shall be collected as noW otherwise provided by law and the same shall be in all things.confirmed.” ■

It seems -entirely clear to -us that under the provisions of this act th'e' property owner -was to have three months -in which to make the' payment of one-third upon the original assessment, .upon the payment of six per cent interest from the date of the passage of the act. If he failed to act. withiri three months lie was penalized to the extent of six per cent per annum. That is, if he ran over ninety days he was to pay interest at one per cent per month, or twelve per cent per annum, instead of; six per cent per .annum, and the time ■ Within which payment could be made at all under the reduced assessment .was limited to three days beyond the then current calendar year, át the end of which time the original assessment was to- be reinstated and confirmed.

The. petitioner, or her predecessor iri title* inade no payment *153under the provisions of chapter 522 of the Laws of 1899, but in the - year 1903 the Legislature enacted chapter 398 of the laws of that year, in which section 2 of chapter 522 of .the Laws of 1899 was amended “ so as to read as follows: § 2. Any person interested who shall not avail himself of the privilege afforded by the foregoing section, on or before June first, nineteen hundred and three, shall have no right to make payments except for the following terms : He shall pay one per centum interest for each calendar month upon the sum directed ■ to be paid by this act from , the time of "the passage thereof, and all rights to make such payments- are extended only to and shall cease at the end of the present calendar year with three days added thereto, after which time the installments of assessments shall be collected as now otherwise -provided by law and the same shall be in' all things confirmed.” Subsequent to-the passage of "the act of 1903 the petitioner’s predecessor in title paid one-third of the amount of the original assessment, without interest, to the deputy collector of assessments and arrears, and received a receipt therefor. The comptroller,, however, contending that the payment should . have included interest, refused to cancel the assessment, whereupon this proceeding was instituted to compel him t'a do so.

Under the settled rule of statutory construction that an original statute- with all its amendments must be read together and viewed as one act passed at the same time (Lyon v. M. R. Co., 142 N. Y. 298, 303, and authority there cited), chapter 522 of the Laws of 1899 is to be read, for the purposes of this controversy,- as though it contained section 2 as amended by chapter 398 of the Laws of 1903, and as thus viewed there are irreconcilable inconsistencies in the act. Where there is any- necessity to resort to construction at all, it must be in favor of the property Owner, rather than against him (Nehasane Park Assn. v. Lloyd, 167 N. Y. 431, 436, and authorities there cited), and as section 2 of" the act, as amended, gives the property owner "the right to pay one-third óf the original assessment, and to be. discharged from the remainder on or at any time prior to June lp 1903, the provision of section 1 of the original act that the" same might be paid within “ ninety days after" the passage of this- act with intere’st at the rate of six per centum per annum, from the day of its passage,” must be deemed.to have been:repealed in so far as it-fixed a limitation of ninety, days from: the date of the original, enact*154ment for taking advantage of its provisions upon the payment of six per cent interest, but we can see no reason for-believing that the Legislature intended to relieve the property owner from the payment of interest upon an ascertained amount of the assessment. It is generally recogpize'd aS the law of the land that where one is indebted to another, and this-amount is known, interest upon the amount unpaid follows as a matter of course, and we can see no difference in principle because the amount isowed' to a municipal corporation for a 'public improvement instead of to an individual or privote -Corporation. We are of the opinion, therefore, that- the act should be construed to read that “the.payment hereinbefore provided for may be made, on or. before June first, nineteen hundred and three, with interest at the rate' of six per' centum per annum from the day that the amount became fixed by the passage of' -the original act.” This gives to the petitioner all of the rights which were accorded to others by the provisions of the original act in 1899, and as she has. had the use of the money which belonged to tlie city of Hew’ York from .'the date of the original act, she is in justice bound to pay for the use of the same. If ,wé are right in this conelusion, it follows that the petitioner, or lief predecessor in title,. could- not. discharge the obligation owed to the city of Hew York by the payment of one-tliird of the amount of the original assessment, without interest, and that the peremptory writV,of pnandamus could not properly issue to 6ompel the cancellation of the apparent lien upon the premises. ’ :

The petitioner’s predecessor in title, by paying one-third of the original assessment, has. estopped those. claiming under him to' deny the validity of the obligation created by the original assessment, and as the amount bécame fixed under the provisions of chapter 522 of the. Laws of 1899, there was a debt owing to the.city -of- Hew York from the 5th day of May, 1899, when said statute took effect, to the time of the. payment in May, 1903, and the statute, did not authorize the comptroller to receive less than the debt, with interest.

If the petitioner’s predecessor-in title had not paid the assessment until after the 1st day of June, 19Ó3, he would have been permitted to pay the same. upon, the condition that he should “pay one per centum interest for each calendar month upon the sum directed to.be paid by this act .from the time of ‘ the passage thereof,”, which *155could refer to no other time than the date of the passage of the original act which fixed the amount to be paid. It would be absurd to say that the Legislature intended to extend the interest of one per cent per month back to the time of the passage of the original act, in case of default, and to entirely relieve the property owner from the payment of simple interest over the same term where he complied with the provisions of the act and paid on or before the first day of June. Reading the whole act together, for the purpose of learning the legislative intent, we can reach no other conclusion than that the order appealed from should be reversed.

The order- appealed from should be reversed, with ten dollars ■costs and disbursements.

Hirschberg, P. J., Bartlett, Jenks and Hooker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.