In re City of New York — 140 A.D. 203

Majority

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In the Matter of the Application of The City of New York, Appellant, to Acquire Certain Real Estate at Valley Stream, Rockville Center, Baldwin, Freeport, Merrick, Bellmore and Seaford, in the Town of Hempstead, in the County of Nassau, for the Purpose of Water Supply. Frederic N. Watriss and Others, Respondents.

Second Department,

October 7, 1910.

Headnote

Eminent domain — condemnation proceedings, city of New York — compensation of commissioners.

Section 265 of the charter of the city of New York, providing that the fees of commissioners in proceedings for 'the condemnation of lands for public purposes shall not be taxed prior to the confirmation of their report, was not repealed by chapter 725 of the Laws of 1905, and, hence, the court cannot allow the commissioners compensation prior to such confirmation.

Appeal by The City of New York from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 17th day of May, 1910, awarding compensation to the respondents, commissioners of appraisal in condemnation proceedings, prior to the making and confirming of a report.

Edward H. Wilson [ James D. Bell and Archibald R. Watson with him on the brief], for the appellant.

Phelan Beale [Frederic N. Watriss with him on the brief], for the respondents.

The above-entitled proceeding was brought under the provisions of the Greater New York charter, to condemn a strip of land in Nassau county. The respondents were appointed commissioners of appraisal by an. order dated December 11, 1908, and their oaths as such commissioners were filed in the office of the county clerk of Nassau county on the fourteenth day of December of that year. On the 30th of December, 1908, the commissioners organized, and on the 9tli of January, 1909, the first meeting was held for the transaction of business. There are about 350 damage parcels involved in the proceeding, and the commissioners have taken over 5,000 pages of testimony, and have received over 600 exhibits, and they have taken evidence at seventy-eight actual sessions of the commissioners. The claimants finished their case on the 4th of November, 1909, and The City of New York commenced its case on that date and terminated it on the 11th day of February, 1910. Of the eases before them the commissioners have reported upon four parcels, this being done for the purpose of bringing up for adjudication certain questions of law which are now pending at Special Term With matters in this situation the respondents (the commissioners of appraisal) asked the court for an order fixing their compensation up to a certain date, and such order has been granted, fixing the compensation of each commissioner at $4,000, to include all disbursements up to the 1st day of March, 1910. The City of New York appeals from this order, urging that the court is without-power to make such an award prior to the completion of the work and confirmation of the report, and that it would be an abuse of discretion to permit the award to stand.

It is not disputed that section 265 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1902, chap. 84) provides that “ No bills of costs for fees of commissioners in and about special proceedings instituted for the acquisition of the title to lands required by the city .of New York for public purposes, shall, unless the same be payable by law from the fund for street and park openings, be taxed by the Supreme Court prior to the confirmation of the report of the commissioners appointed in such proceeding ; ” but it is urged that in some way this positive inhibition of the statute has been overcome by the provisions of

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chapter 725 of the Laws of 1905. We had this latter act under consideration in Matter of City of New York, Town of Hempstead ( 125 App. Div. 219 ). and we there held that it did not operate to repeal those provisions of the charter of the city of ¡New York which had to do with the compensation to be paid in relation to the securing of a water supply, and no reason suggests itself why we should not now hold that the provisions of chapter 725 of the Laws of 1905 do not operate to repeal the provisions of section 265 of the charter. The office of commissioner to determine the value of property taken under the power of eminent domain is very similar to that of a referee, and it is well settled that under ordinary circumstances a referee’s right to fees does not accrue until he has completed the reference and filed or delivered his report. (Little v. Lynch, 99 N. Y. 112 ; Russell v. Lyth, 66 App. Div. 290 .) It is true, of course, that where one contracts to give personal services for a definite period, or until he has completed a particular piece of work, and he is prevented, by an inevitable cause, such as death, from rendering full performance, he will still be entitled to recover upon a quantum meruit for the services actually rendered (Hebard v. City of New York, 137 App. Div. 752 , 753), but even this rule is subject to the condition that the services rendered shall be of value to the party receiving them. (Wolfe v. Howes, 20 N. Y. 197 .) The valuable part of the services rendered by qommissioners is the fina] report;' the determination on which the rights of parties depend. All the remainder is preliminary to the report, necessary to reach a result, but of no value until the result is reached. Under the provisions of the order now under consideration the commissioners could draw their $4,000 each and never complete their report, and the valuable part of their services to the city of ¡New York and the claimants in the present proceeding would be entirely lacking. We do not think there is any ground for paying commissioners in condemnation proceedings until the services are completed by the rendering of a report and the confirmation thereof. Any other rule would subject the municipality and claimants to the risks of commissioners dying or refusing to act after large expenses had been incurred, and we do not think it was ever contemplated by the Legislature that this condition should be allowed. It is not claimed that any positive statute ever provided for such payments, and we

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know of no case of controlling authority which has ever sanctioned such practice. It is true that in some cases, where the commissioners have made their report upon certain parcels, the court has permitted the payment of the compensation earned upon such parcels. But that is not the case here. The order simply audits the bill for services u p to a given date, leaving the further performance of services in the completion-of the report to be provided for later, and we are clearly of the opinion that there is no warrant in law for such an order.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied, with costs.

Hirschberg, P. J., Burr, Thomas and Rich, JJ., concurred.

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

Cases cited

Little v. Lynch 99 N. Y. 112 N.Y. 1885-04-28 p. 205
Wolfe v. Howes 20 N. Y. 197 N.Y. p. 205