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The city shall, within three calendar months after the confirmation of the report of the commissioners of appraisal, pay to the respective owners and bodies politic or corporate, mentioned or referred to in such report, in whose favor, any sum or sums of money shall be estimated and reported by such commissioners, the respective sum or sums so estimated and reported in their favor respectively, with lawful interest thereon, from the date of filing the oath and certified copies thereof as by this subchapter required, deducting therefrom all sums of money paid on account thereof as provided in section 5-386 of this subchapter. In case of neglect or default in the payment of the same within the time aforesaid, the respective person or persons or bodies politic or corporate in whose favor the same shall be so reported, his, her, or their executors, administrators or successors, at any time or times, after application first made by him, her, or them, to the comptroller for payment thereof, may sue for and recover the same, with lawful interest as aforesaid, and the costs of suit in any proper form of action against the city in any court having cognizance thereof, and it shall be sufficient to declare generally for so much money due to the plaintiff or plaintiffs therein by virtue of this subchapter for real estate taken or affected for the purpose herein mentioned, and the report of such commissioners, with proof of the right and title of the plaintiff or plaintiffs to the sum or sums demanded shall be conclusive evidence in such suit or action.
All claims of every name and nature under this subchapter, except claims provided for under section 5-398, must be exhibited and presented to the commissioners of appraisal having jurisdiction of the same within the following periods of time:
(a) in the case of real estate acquired in fee or in which an easement is acquired, within three years after title thereto shall have become vested in the city;
(b) in the case of claims under section 5-423, within three years from the date of the filing of the oaths of the commissioners appointed after the acquisition by the city of New York of the real estate, the acquisition of which is claimed to be the direct or indirect cause of damage, or within three years from the execution of the plan or work, the execution of which is claimed to be the direct or indirect cause of damage. In the case of real estate acquired in fee or in which an easement is acquired, every person neglecting or refusing to present a claim within such time shall be deemed to have surrendered his or her interest in such real estate or his or her claims for damages thereto, except so far as such person may be entitled as an owner of, or person interested in the award, if any, made by the commissioners of appraisal. All other claims not exhibited and presented within the time above specified shall be forever barred.
Not less than eighteen months after the date of the filing of the oaths of any original commission appointed pursuant to the provisions of this subchapter, the corporation counsel may call a session of the commission appointed and acting as successor to such original commission for the purpose of having such successor commission fix dates for the hearing and presentation of any and all claims not theretofore disposed of and heard; such session shall be known as the calendar call. At least ten days prior to such calendar call the corporation counsel shall give personal notice in writing to any or all persons interested in the proceeding and their attorneys, if any, that such a calendar call will be held and that dates will be fixed for the hearing and presentation of claims. All persons so notified may appear at such calendar call for the purpose of having dates fixed for the hearing and presentation of their claims. In the event that persons so notified fail to appear at such calendar call, the commission at the request of the corporation counsel shall fix dates for the hearing and presentation of their claims, which dates shall be not less than twenty days after such calendar call. The corporation counsel shall further notify such persons in writing of the dates thus fixed, which notice shall be so served not less than five days before the date so fixed. All persons failing to appear on the dates fixed by the commission at such calendar call, or failing to give legal excuse for so failing to appear to the commission at or before the time of such calendar call, shall forfeit their right to interest from and after the date fixed by the commission at the calendar call on any award made to them.
Whenever the owner or owners, person or persons interested in any real estate taken or affected in such proceedings, or in whose favor any such sum or sums or compensation shall be so reported shall be under the age of twenty-one years, of unsound mind, or absent from the state of New York, and also in all cases where the name or names of the owner or owners, person or persons interested in any such real estate shall not be set forth or mentioned in such report, or where the owner or owners, person or persons being named therein, can not upon diligent inquiry be found, or where there are adverse or conflicting claims to the moneys awarded as compensation, it shall be lawful for the city to pay the sum or sums mentioned in such report, payable, or that would be coming to such owner or owners, persons or persons respectively, with interest aforesaid, into such trust company as the court may in the order of confirmation direct, to the credit of such owner or owners, person or persons, and such payment shall be as valid and effectual, in all respects as if made to such owner or owners, person or persons interested therein respectively, themselves, according to their just rights. In all cases, however, where any such sum or sums or compensation, reported by the commissioners in favor of any person or persons or party or parties, whatsoever, whether named or not named in such report shall be paid to any person or persons or party or parties, whomsoever, when the same shall of right belong and ought to have been paid to some other person or persons, or party or parties, it shall be lawful for the person or persons or party or parties to whom the same ought to have been paid, to sue for and recover the same with lawful interest and costs of suit as so much money had and received to his, her or their use by the person or persons, party or parties, respectively, to whom the same shall have been so paid.
The commissioners of appraisal may, in their discretion, take up any specified claim or claims and finally ascertain and determine the compensation to be made thereon, and make a separate report with reference thereto, annexing to such report a copy of so much of the maps as displays the parcel or parcels so reported on. Such report as to the claims therein specified shall be the report required in this subchapter, and the subsequent action with reference thereto shall be had in the same manner as though no other claim were embraced in such proceeding, which, however, shall continue as to all claims upon which no such determination and report is made.
Whenever the owner of any private property any part of or interest in which shall have been taken under any proceeding had pursuant to this subchapter shall claim that the prosecution of any work done pursuant to such proceeding has been the proximate cause of actual and material damage to any part of such property and that commissioners of appraisal could not have taken cognizance of such damage pursuant to section 5-387 of this subchapter, until the actual happening thereof because of its unforeseeable or speculative nature, the proper person or board representing the city may agree with such owner as to the amount of such damages. If such agreement cannot be made, such owner may present to the commissioners of appraisal his or her claim in writing duly verified on oath. It shall be the duty of the commissioners to hear allegations and proofs and to proceed in like manner as is provided in the case of property taken pursuant to such proceedings as aforesaid and to determine such actual damages, if any, which were unforeseeable or speculative until the actual happening thereof. The amount of such damages so agreed upon, if any, or so determined, shall be payable and collectible in the same manner as is provided in the case of awards made through the confirmation of a report of commissioners of appraisal in such proceedings. In case at the time of making any such claim there shall be no commissioners authorized to take cognizance thereof, the corporation counsel, for and on behalf of the city, shall make an application for the appointment of commissioners of appraisal in the manner prescribed by this subchapter, to take cognizance of such claims. Provided, however, that such claims shall be presented in the manner above specified within two years from and after the completion of the work, the prosecution of which is claimed to have been the proximate cause of such damage and that such claim shall be supported by proof of interest in the property alleged to have been damaged and of such damage and that it resulted proximately from the prosecution of such work, as aforesaid, and that it was so unforeseeable or speculative, as aforesaid; and that the claim could not, with due diligence, have been presented to prior commissioners of appraisal subsequently to the happening of the damage. In every case the payment of the amount agreed upon or determined or adjudged under and pursuant to this section shall be a continuing, complete, and conclusive bar to all claim of damage by anyone whomsoever to the property concerned or any part thereof due to the prosecution of the work.
Within twenty days after notice of the confirmation, modification or rejection of the report of the commissioners, as provided for in section 5-391 of this subchapter, either party may appeal, by notice in writing to the other party, to the appellate division of the supreme court, from the order confirming, modifying or rejecting the report of the commissioners. Such appeal shall be heard on due notice thereof being given, according to the rules and practice of such court. On the hearing of such appeal, the court may affirm, modify or reverse the order of special term or it may direct a new appraisal and determination of any question passed upon, by the same or new commissioners, in its discretion, but from any determination of the appellate division, either party, if aggrieved, may take an appeal which shall be heard and determined by the court of appeals. If the amount of compensation to be made by the city is increased after a new trial, the difference shall be paid by the comptroller to the parties entitled to the same, or shall be deposited, as the court may direct; and if the amount is diminished, the difference shall be refunded to such city by the party to whom the same may have been paid, the judgment therefor may be rendered by the court, on the filing of a subsequent decision, against the party liable to pay the same. But the taking of an appeal by any person or persons shall not operate to stay the proceedings under this subchapter, except as to the particular parcel of real estate with which such appeal is concerned. Such appeal shall be heard upon the evidence taken before such commissioners, and any affidavits as to irregularities submitted to the court at special term, and three typewritten copies of such evidence shall be furnished by the city to the party taking the appeal within ten days after the appeal is perfected, and such appeals may be heard on the evidence so furnished, and such appeals may be taken without security thereon.
The supreme court of the judicial district in which the real estate, or any part thereof, is situated, shall have power at any time to amend any defect or informality in any of the special proceedings authorized by this subchapter as may be necessary, or to cause other property to be included therein and to direct such further notice to be given to any party in interest as it deems proper, and also to appoint other commissioners in place of any who shall die, or refuse or neglect to serve, or be incapable of serving or be removed. Such court may at any time remove any of such commissioners of appraisal who, in its judgment, shall be incapable of serving or who shall for any reason in its judgment be an unfit person to serve as such commissioner. The cause of such removal shall be specified in the order making the same. If, in any particular, it shall, at any time, be found necessary to amend any pleading or proceeding, or to supply any defect therein, arising in the course of any special proceeding authorized by this subchapter, the same may be corrected or supplied in such manner as may be directed by the supreme court, which is hereby authorized to make such amendment or correction.
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