In re Bensel — 130 N.Y.S. 689

Majority

p. 689

In re BENSEL et al.

(Supreme Court, Appellate Division, Second Department.

July 27, 1911.)

Headnote

Municipal Corporations (§ 163^[1] )—Officers—Expenses—Automobile Hire.

Commissioners in acquisition of lands for water supply are entitled to reimbursement for automobile hire, unless the use is improvident; though a carriage would be less expensive.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 368; Dec. Dig. § 163.^[1] ]

Appeal from Special Term, Orange County.

Application by John A. Bensel and others to acquire real estate. On application by Commissioners for compensation. From an order, petitioners appeal.

Affirmed.

Argued before JENKS, P. J„ and HIRSCHBERG, THOMAS, BURR, and CARR, JJ.

William McM. Speer, for appellants.

Edward "J. Collins, for respondents.

Allowance for automobile service has been made. Automobile charges áre much more than those for carriages. For instance; the first item in the account is $15, and probably represents three hours use of the car. This is presumably two or three times the necessary charge for a carriage for the same work. While the car is moving it is not relatively more expensive than a carriage, but while the car is waiting such expense is greater. So it comes to this: Should the commissioners, who must view property, confine themselves to horses for travel to places not reached by rail, or may they use at public expense the swifter automobile at an increased expenditure? It is concluded that they may providently use the automobile. But

p. 690

it would be wasteful' to hire a "car to go for short travel and keep it waiting for hours while the commissioners are detained in examining the property. Such use would be unreasonable. But the affidavit for the commissioners shows that the use of the automobiles was reasonable ; Justice Tompkins so found, and the corporation counsel gives us no advice to the contrary, but stands on the inquiry whether the employment of an automobile is a legal expense. We decide that the expense is not by law prohibited, but the abuse of the facility is. The court in each instance searches the question of proper use, and so just employment of this later means of travel becomes available.

The order is affirmed, with $10 costs and disbursements.