Eno v. Metropolitan Elevated Railway Co.

The defendant took proceedings to acquire real estate in two parcels belonging to the plaintiff. The commissioners assessed the damages, and against the objection of plaintiff, awarded them in the one instance to unknown owners and in the other to the plaintiff or parties interested in the land. The order entered confirming the award provided, in conformity with the statute, that the amount of the award should be deposited and the deposit was made. The plaintiff appealed, and on the appeal the order was modified so that it should award the damages to the plaintiff. As the order of confirmation stood in other respects, being only modified in the manner described, it spoke as of its first date and contained a requirement or an implication that a deposit should be made in such a manner that the plaintiff would be able to obtain it by demand, and also that the amount deposited should comprise the amount of the *104award and interest upon it, from the date of confirmation. The defendants did not make any new deposit. The defendants not filing the orders, etc., as modified by the order on appeal, in the way required by statute, but the plaintiff filing them, the plaintiff in my opinion had an action for the amount of the award and interest from the date of the order of confirmation.

I think the court was right in directing a verdict for plaintiff.

Judgment affirmed with costs.

Freedman and Truax, JJ., concurred.