p. 655County of Westchester, Respondent, v. Wakefield Park Realty Company and Others, Appellants.Headnote
Eminent domain — condemnation — costs,Where the owners of several parcels of land are made parties to a single condemnation proceeding and the question at issue is the amount of compensation to be made, the court has power to award a bill of costs to the owners of each separate parcel.
Appeal by the defendants, the Wakefield Park Eealty Company and others, from so much of an order 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 6th day of October, 1911, as denies the application of the defendants for the allowance of a taxable bill of costs for each parcel separately tried.
Woodson R. Oglesby [Francis X. Donoghue with him on the brief], for the appellants.
Edgar C. Beecroft, for the respondent.
This is a condemnation proceeding, and the only question presented upon this appeal from an order denying an application for costs in each case separately tried is, whether the court had power to grant the award asked for, the motion having been denied upon the ground that the court was without power in the premises. We are of the opinion that the learned court at Special Term has fallen into error in this matter, and that the law .is well established that, where the question at issue is
p. 656as to the amount of compensation to be paid, each separate parcel is to be regarded as a distinct action, and costs.are to be awarded in the same manner as though a separate proceeding had been commenced against each parcel. This was decided, in line with the authorities cited, in
Dexter & Northern Railroad Co. v.
Foster ( 142 App. Div. 240 ) and
Matter of City of New York (129 id. 929). The granting of a privilege to the plaintiff to bring in all of the owners whose property is to be acquired in a single proceeding ought- not to deprive the individual defendants of their right to have that ¡just compensation which the Constitution (Art. 1, § 6) requires,, and which contemplates that the plaintiff shall pay to the defendant the cost sustained by him in defending his rights, except in those cases where the defendant fails to secure an award equal to the amount which has been offered him for the premises.
The order appealed from should be reversed, and the matter should be remitted to the Special Term for adjustment in harmony with this opinion.
Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.
Order reversed and matter remitted to the Special Term- for adjustment in accordancé with opinion.