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In re Simmons

151 A.D. 444 Court Second Department, Decision date 1912-06-07 English

Delivered by Burr, J.:

Contents

Majority

p. 444
In the Matter of the Application of J. Edward Simmons and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Land, etc., for Hill View Reservoir, Section No. 1, Parcel No. 5. William R. Ware and Edward J. Ware, as Trustees under the Last Will and Testament of Enoch R. Ware, Deceased, Appellants; The City of New York, Respondent.
Second Department,
June 7, 1912.

Headnote

Eminent domain—condemnation for additional water supply, city of Mew York—allowance of counsel fees to landowner — statute construed — amount of fees allowable.
Under the statute authorizing the city of New York to condemn lands to provide for an additional water supply, the court has power to make an allowance for counsel fees in excess of $3,000 to an owner whose lands have been taken and who has appeared in the proceeding to protect his rights.
p. 445
The first part of section 33 of the so-called Water Supply Act relates to the counsel fees incurred by landowners whose property is sought to be acquired, while the latter part relates to the fees of counsel designated to appear for the city.
An award of counsel fees to landowners is not restricted to the award to the guardians of incompetent persons or attorneys appointed by the court to protect the interests of parties who have not appeared as provided for in section 13 of the statute.
The provisions of said statute relating to counsel fees are not affected by chapter 725 oí the Laws of 1905 which is not in express terms either amendatory or supplementary thereto and which does not work a repeal by implication.
While section 33 of the Water Supply Act, relating to counsel fees, provides that the allowance shall not exceed the limits prescribed by section 3353 of the Code of Civil Procedure, which is five per centum upon the sum recovered or claimed, etc., the following section of the Code, limiting the aggregate to $3,000, is not applicable and an amount in excess of said sum may be allowed.
Hirschberg, J., dissented.
Appeal by William R. Ware and another, as trustees, etc., of Enoch R. Ware, deceased, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Westchester on the 27th day of February, 1912, in so far as said order denies an application for an allowance of counsel fees in excess of the sum of $2,000.
J. Hampden Dougherty, Benjamin Trapnell and Joseph A. Flannery, for the appellants.
Walter C. Sheppard [William McM. Speer, Louis C. White and Archibald R. Watson with him on the brief], for the respondent.

In 1905 an act was passed designed, among other things, to enable the city of New York to provide for an additional supply of pure and wholesome water, and to acquire the lands necessary for that purpose (Laws of 1905, chap. 724). For convenience of designation we shall refer to it as “The Water Supply Act.” Pursuant to its provisions, proceedings were taken to condemn lands belonging to appellants, known as parcel No. 5. Commissioners of appraisal reported that the owners thereof were entitled to an award of $76,200, with

p. 446
interest from May 20, 1907, amounting on January 20, 1912, to $97,537. A motion was thereupon made by them for an allowance for counsel fees and disbursements. The learned court at Special Term granted the motion to the extent of' making an allowance in the sum of $2,000, but denied so much of said motion as asked for an allowance for counsel fees in excess of that sum “for want of power in the court to grant the same.” From this portion of the order the landowners appeal.

The respondent contends in the first place that the Water Supply Act confers no authority upon the court to make allowances for any amount to those persons whose lands are condemned in accordance with the provisions thereof, and cites in support of such contention Matter of Low ( 103 App. Div. 530 ) and Matter of Rapid Transit R. R. Commissioners ( 197 N. Y. 81 , 110). The point seems not to have been raised in the court below, and the city does not appeal from so much of the order as granted allowances to the extent of $2,000. .But we deem this contention without merit. Both of the cases relied upon arose under the Rapid Transit Act (Laws of 1891, chap. 4, and the acts amendatory thereof). The language of the Water Supply-Act. differs materially from that contained therein. By section 62 of the Rapid Transit Act (Laws of 1891, chap. 4, as added by Laws of 1894, chap. 752, and amd. by Laws of 1909, chap. 498)[1] “ The corporation counsel or other principal legal adviser to said city shall, either in person or by such counsel as he shall designate for the purpose, appear for and protect the interests of the city in all such proceedings in court and before the commissioners. * * * The fees of the commissioners and all other necessary expenses in and about the said proceedings provided for by this act and such allowance for counsel fees as may be made by order of the court, and all reasonable expenses incurred by said corporation counsel, or other principal legal adviser of said counsel designated by him for the proper presentation and defense of the interests of said city before said commissioners and in court, shall be paid by the comptroller or other chief financial officer of said city out of the

* See, also, Laws of 1910, chap. 205, amdg. said § 62.—[Rep.

p. 447
funds referred to in the last preceding section.” Construing this language, the court in Matter of Rapid Transit R. R. Commissioners (supra) said: “ While it is true that the section authorizes the payment of such allowances for counsel as may he made by order of the court,’ those words are immediately followed by these, and all reasonable expenses incurred by said corporation counsel.’ The latter words as well as the entire context indicate that the Legislature had in mind only the outside counsel acting or employed in behalf of the city. The counsel for the property owners are not mentioned.” As the Rapid Transit Act contained no other provision for costs and allowances, it was held that in the absence of a statute providing therefor none could be allowed. (Matter of City of Brooklyn, 148 N. Y. 107 .) The Water Supply Act contains two provisions relating to counsel fees, both contained in the section numbered 32. By the first it is provided that “ The fees of the commissioners and the salaries -and compensation of their employees, and their necessary traveling expenses, and all other necessary expenses, in and about the special proceedings provided by this act to be had for acquiring title or extinguishing claims for damages to real estate, and such allowances for counsel fees as may be made by order of the court shah be paid by the comptroller of the city of Hew York out of the funds hereinafter provided.” Here the provision for allowances for counsel fees is not coupled with the words “ and all reasonable expenses incurred by said corporation counsel.” Although the act does authorize the corporation counsel to employ such other counsel as he shall designate for the purpose, to appear for and protect the interests of the city in all proceedings under the act, a later provision of the same section expressly provides for the payment of such additional counsel in these words: “ The compensation and expenses of such ' of his assistants or other counsel as the corporation counsel may designate to represent and aid him in the performance of his duties under this act, shall also be paid out of the funds hereinafter provided, and upon the certificate of the corporation counsel who shall have power to appoint such assistants or other counsel and to fix their compensation. ” If the earlier clause were intended to cover the matter of compensation of additional counsel employed
p. 448
in behalf of the city, it was unnecessary to specifically provide therefor by the later clause. In addition, the amount of compensation of such additional counsel is to be fixed by the corporation counsel, and not by an order of the court. Necessarily these two clauses cannot relate to the same thing. The respondent further contends that if the earlier clause of the section can relate to allowances for counsel fees incurred by landowners' whose property is sought to be acquired, such allowances must be limited to those cases referred to in section 13 of the same act. That section (as amd. by Laws of 1906, chap. 314) provided that the commissioners might “ determine and recommend what sums if any ought to be paid to the general or special guardian of - an infant, idiot or person of unsound mind, or to an attorney appointed by the court to attend to the interests of any known owner or party in interest who has not appeared in the proceeding, for expenses or counsel fees. ” The language of section 32 is not limited in express terms to the cases referred to in section 13. It would seem unreasonable that an allowance should be made out of the funds in the comptroller’s hands to counsel for a property owner who • did not appear in the proceeding, while one who did appear in order to. protect and maintain his rights must do so at his own expense. No provision is made for any recommendation by the commissioners as to counsel fees for property owners of the latter class. A reason may be found for the distinction. The property owner who appears and protects his rights can himself make application to the court for his allowances for counsel fees. In the case of the property owner who does not appear, the court might well have the assistance of a recommendation from the commissioners with respect to the expenses of an attorney appointed by the court to appear for them. Thus construed, the provisions’ of the act may be made harmonious, and in the absence of any controlling reason, if allowances for counsel fees are to be made to any of the persons whose property is acquired, at least as favorable consideration should be shown to those who have appeared and assisted the court in determining their rights as to those who have failed to appear and render such assistance.
p. 449
The provisions of the Water Supply Act now under consideration are not affected by an act which became a law simultaneously with it. (Laws of 1905, chap. 725.) This is not in express terms either amendatory or supplementary of the Water Supply Act. While some of its provisions may relate to proceedings taken thereunder, the act generally may also apply to proceedings taken under other acts and prior to the passage thereof. It contains no esqxresS words of repeal, and if it were a later act, which it is not, so far as the question here under consideration is concerned there is no such necessary inconsistency between this and the other act that we are required to hold that there was a repeal by implication. (Matter of City of New York [Town of Hempstead], 125 App. Div. 219 .) The language of section 32 of the Water Supply Act, so far as it relates to allowances to counsel for the property owners, is as follows: “ Such allowances shall in no case exceed the limits prescribed by section three thousand two hundred and fifty-three of the Code of Civil Procedure.” The limit for an allowance prescribed in that section is “a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved. ” The learned court at Special Term held that this section must be read in connection with the succeeding section (§ 3254) as if both had been referred to.. The language of section 3254 is as follows: “But all the sums awarded to the plaintiff, as prescribed in section 3252 of this act, or to a party or two or more parties on the same side, as prescribed in the last sentence of section 3251 of this act, and in subdivision second of the last section, cannot exceed, in the aggregate, two thousand dollars.” In this we think that the court erred. First, this is not the language of the Water Supply Act. When the language of a statute is plain and specific, its meaning may not be changed by any general principles of interpretation or construction. (People v. Long Island R. R. Co., 194 N. Y. 130 .) Second, the language of section 3254 is not applicable to this proceeding. That section relates (a) to a person who is plaintiff in one of the actions referred to in section 3252 of the act; (b) to a party or to two or more parties on the same side, as prescribed in the last sen
p. 450
tence of section 3251; (c) to parties in the actions or special proceedings referred to in the last subdivision of section 3253. The appellants are not included in either class. Not only are they not plaintiffs in one of the classes of actions described in section 3252, but this is not an action of any kind. The last sentence of section 3251 relates only to parties to actions which have been heard in the Court of Appeals, and in which damages have been awarded by way of costs for delay. Finally although this is a special proceeding, it is not one of those referred to in the last subdivision of section 3253. Its provisions- are limited to certain special proceedings by certiorari to .review assessments under the Tax Law.

. Neither is there any general policy of the law which would-require the hmitation of allowances to the sum of $2,000. The General Condemnation Law (Code Civ. Proc. §§ 3357-3384), in that portion thereof relating to allowances in addition to costs, specifies the amount thereof as a sum “not exceeding five per centum upon the amount awarded.” (See § 3372.) No other limitation appears therein. The analogy between proceedings taken under the Water Supply Act and the General Condemnation Law is closer than between such proceedings and the actions or special proceedings referred to in either section 3253 or 3254 of the Code of Civil Procedure.

So much of the order as is appealed from should be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term to consider the application for allowance by way of counsel fees upon the merits.

Thomas, Carr and Woodward, JJ., concurred; Hirschberg, J., dissented.

Order, in so far as appealed from, reversed, with ten dollars costs and disbursements, and proceeding remitted to the Special Term to consider application for allowance by way of counsel fee upon the merits.

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