Opinion
June 28, 1967
Appeal from a judgment of the Supreme Court at Special Term directing appellant-respondent to pay interest on the total award made to respondents-appellants in an appropriation case. The appropriation of petitioners' property occurred on March 21, 1961 and on April 21, 1962 petitioners and the State executed an agreement providing for an advance payment of 60% of the amount determined by the Superintendent of Public Works to be the value of the claim, in advance of the trial thereof (Highway Law, § 30, subd. 13). One of the conditions imposed by the State was the delivery of a release of all other claims, it being then recognized that the Utica Transit Corporation possessed a permanent easement over part of the lands. Because this corporation refused to execute a release, payment of this 60% was not made and a claim was filed by petitioners on July 12, 1962. The trial of the claim in the appropriation case was followed by a decision on November 9, 1964 in favor of the claimants (petitioners herein) awarding them damages in the sum of $51,614. Following the decision and on December 7, 1964 the State decided to disregard its requirement of a release from Utica Transit Corporation. Judgment, with interest to the date of entry, was entered on January 4, 1965. The State subsequently agreed to pay the judgment but without interest on $20,100 representing the advance 60% originally agreed upon. In this proceeding, the petitioners seek to have interest paid on the $20,100, reasoning that this sum was actually paid under the judgment. The State's contention that this sum, although paid after judgment, was actually a belated advance payment under the agreement, cannot be sustained. The State permitted the entry of judgment in an amount which included the unpaid advance and it should not be heard now to complain. This principle of waiver by the State was clearly stated in Matter of Dellas v. McMorran ( 51 Misc.2d 223 [Foster, J.]). Aside from this consideration, however, a judgment has been entered with interest and from which there is no appeal pending. Petitioners' cross appeal for interest up to the date of actual payment has no merit (Court of Claims Act, § 20, subd. 7). Judgment affirmed, with costs to claimants. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.