In re Bensel — 141 A.D. 841

Majority

p. 841

In the Matter of the Application and Petition of John A. Bensel and Others, Constituting the Board of Water Supply of The City of New York, Appellants, to Acquire Real Estate, etc., in the Town of Mount Pleasant, Westchester County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. Kensico Reservoir, Section No. 6. Fourth Application for Commissioners’ Compensation. Vincent Nellany and Others, Commissioners of Appraisal, Respondents.

Second Department,

December 2, 1910.

Headnote

Municipal corporations — water supply, city of New York — fees of commissioners.

The fees of commissioners appointed in a proceeding to acquire- lands for additional water supply for the city of New York should be an equivalent for the work done and the time properly required for doing it. The statute does not require a per dim allowance. .

In applying for an allowance the commissioners should show the time actually and necessarily consumed in .their sessions, or submit their full minutes as an indication thereof,' and give an estimate of the time taken by them in connection with their business, if any, outside their sessions, and a statement of the character and nature of their services. A mere statement of the number of sessions held without particulars as to the time actually and necessarily consumed thereby is not sufficient. '

Commissioners may apply for fees when a matter dealt with-in a separate and distinct report is completed. -.

Appeal by the petitioners, John A. Bensel and others, constituting the Board of Water Supply of the.City of New York, from

p. 842

two' orders of the Supreme Court, made at' the Westchester Special-Term and entered in the office of the'clerk of the county' of Westchester on the 18th and 21st days of March, 1910, respectively, taxing and allowing bills of commissioners of appraisal for additional compensation ; and also¡ from an order entered' in said clerk’s office on the 13th day of April, 1910, which resettled' the above orders. •

William MoM. Speer {Archibald R. Watson with him. on the brief], for the appellants.

' ■ Charles LL. Lovett, for- the respondents. • •

This appeal concerns a fourth separate application to tax commissioners’ fees in the matter of acquiring certain real estate pursuant to .chapter 724 of the Laws of 1905. When the statute (§ 32) provides compensation it means an equivalent for work done. And, therefore, the court should look into the work done and the time properly required for the doing of it. The statute does not recognize a per diem allowance, and .there is no reason that* requires-the adoption of such a standard. Certainly the compensation should not be increased because the commissioners consumed some parts of many days in the doing of work that might be completed in- but a few days, unless circumstances'beyond the control of the commissioners . required such a division of their labors. Rather the court should incline- to increase the compensation when; the work1 was done by devotion' throughout a day in disregard of all other matters and for the additional reason that such dispatch is a benefit to the city.

' The compensation may be entirely proper, but we think that the present record is too-meagre and-, too' indefinite to-justify the' action of the Special Term. A detail of the mere number of sessions held,"without particulars of the time actually and necessarily consumed thereby, is not sufficient, nor is- a statement in the minutes that at a particular session á witness or several witnesses testified-, or even -testified at length. Either the commissioners should have shown the time actually and necessarily consumed in their sessions, ■or should have submitted their full minutes as an indication thereof.

p. 843

Hot is it difficult to submit an estimate of the time consumed by them, if any, outside of their sessions, but about this business, as well as a statement of the character and nature of such services. We are not cited to any provision of law that forbids the separate application as to matters completed and then dealt with in a distinct and separate report. Such practice we are informed is approved by this court in its Third Department, and we see no reason to differ. (See Matter of Bensel [Ashokan Reservoir, Sec. No. 16], 138 App. Div. 662 .) If an allowance is determined solely by the criterion of an equivalent for work done, it is a thing in itself and should have no bearing in relation to the compensation for any other work.

For these reasons we feel constrained to reverse the order, ivithout costs, and to remit the matter to the Special Term to determine the compensation.

Hirsohberg, P. J., Woodward, BuRRand Thomas, JJ., concurred.'

Order reversed,, without costs, and matter remitted to the Special Term to determine the compensation.