1. In an action to recover money from the United States wherein,
upon a suggestion made by the circuit court of appeals to avoid a
reversal, the plaintiff assigned part of the recovery to a city
which claimed an interest in the premises but insisted that the
complaint should have been dismissed, held
that the city,
by not objecting to the suggestion in the court of appeals and by
waiting three months before suing out a writ of error here, must be
deemed to have accepted the assignment and consented to the
judgment, and that its writ of error must be dismissed. P.
261 U. S.
2. In an action against he United States for a balance due on
property taken under the Lever Act, interest is recoverable from
the date of the taking. P.
261 U. S. 298
. Seaboard Air Line Ry. Co. v. United
States, post, 261 U. S. 299
Writ of error of City of New York to review 280 F. 76 dismissed.
As to the United States, judgment affirmed.
Error to a judgment of the circuit court of appeals affirming,
with modification, a judgment of the district court for the
plaintiff in an action against the United States for a balance due
as compensation for property taken under the Lever Act. The City of
New York was joined as codefendant to adjudicate its claim of
interest in the property.
Page 261 U. S. 296
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Relying upon the Lever Act -- 40 Stat. 276, 279 -- the United
States took possession of certain land along new York Bay, April 6,
1918, and, as surviving trustee under the will of Langley,
defendant in error, Benedict, instituted this proceeding to recover
its value. The tract had been platted into blocks, and trustees
holding the title had undertaken to convey to New York City the
beds of Sixty-First, Sixty-Second, and Sixty-Third Streets from
designated avenues "to New York Bay," as laid down on the
commissioners' map. The city was made defendant to the amended
complaint because of possible interest arising out of this
conveyance. No right of recovery against it was suggested. It
answered rather vaguely, but claimed title to
"the lands included within the limits of Sixty-First street,
Sixty-Second Street and Sixty-Third Street from the westerly side
of First Avenue to the New York Bay,"
and stated that "the
Page 261 U. S. 297
area of said streets is 81,120 square feet." It asked that the
complaint be dismissed. Later, it moved, without success, to amend
the answer and set up ownership to the beds of Sixty-First,
Sixty-Second and Sixty-Third Streets to the pierhead line.
The cause was tried by the court without a jury. The United
States stipulated that defendant in error had good title to all the
tract, upland and submerged, except such as lay within Sixty-First,
Sixty-Second and Sixty-Third Streets to high water mark. Among the
findings of fact which the city proposed is this:
"That on April 25, 1899, the said trustees duly executed and
delivered to John Whalen, the then corporation counsel of the City
of New York, a deed granting and conveying to the City of New York
the fee, impressed with a trust for street purposes, of the lands
included within the limits of Sixty-First Street, Sixty-Second
Street and Sixty-Third Street from the westerly side of First
Avenue to the New York Bay."
Judgment went against the United States for a sum equal to two
dollars per square foot of the whole area, with interest, less cash
originally paid. The trial court held the trustees' deed to the
streets invalid, but, if valid, that the recovery nevertheless
should be for the same amount as streets were essential to
enjoyment of the property. 271 F. 714.
Writs of error from the circuit court of appeals were sued out
by both defendants. The city assigned as error, among others, the
trial court's refusal to dismiss the complaint. By opinion dated
January 18, 1922 -- 280 F. 76 -- the court ruled that the city had
good title to the streets, that the judgment of the district court
was erroneous and a new trial would be awarded, unless out of the
recovery defendant in error should assign to it $162,240 -- two
dollars per square foot for the platted streets up to New York Bay,
81,120 square feet, as stated
Page 261 U. S. 298
by the answer. January 28th, the trustees so assigned $162,240,
with interest from April 6, 1918, and, on January 31st, the
contested judgment was formally affirmed.
In the circuit court of appeals, the city entered no objection
to the arrangement suggested by the opinion. Its counsel here claim
"the judgment should be modified by requiring defendant in error
to assign to the City of New York an additional portion of the
judgment recovered against the United States, representing the
compensation, with interest, awarded for the portions of the
streets between the high water line and the pierhead line, to-wit,
the sum of $589,731.82."
The situation is a peculiar one. The city asked not for
recovery, but to be dismissed. Of its own motion and off the
record, the court proposed a method of settlement which the trustee
adopted in preference to reversal. These unusual circumstances
required the city to act promptly if it did not approve. After
nearly three months, it took a writ of error, and now seeks to
reverse the judgment because a greater sum was not awarded. We
think it may not deny voluntary acceptance of the assignment and
full assent to the arrangement which defendant in error carried out
with the obvious purpose of ending the controversy between them. It
cannot hold what it accepted and demand more. The final judgment
must be treated as though entered upon its express consent, and its
writ of error is accordingly dismissed.
The United States object to the judgment because interest was
allowed from date of the taking. This point has been discussed and
determined in Seaboard Air Line Railway Co. v. United States,
post, 261 U. S. 299
needs no further elaboration. As to the United States, the judgment