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In re South Market Street

29 N.Y.S. 1030 Court N.Y. Gen. Term Decision date 1894-07-14 English

Delivered by HERRICK, J.

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In re SOUTH MARKET ST. In re YOUNGLOVE.
(Supreme Court, General Term, Third Department.
July 14, 1894.)

Headnote

Costs—Special Proceeding.
An order appointing commissioners to assess damages claimed by landowners in proceedings to extend a street is a special proceeding, within Code Civ. Proc. § 8240, providing that costs on an appeal in a special proceeding taken to a court of record may be awarded to any party, in the discretion of the court, at rates allowed for similar services in an action.
Proceeding to extend South Market street, in the village of Johns-town, through lands of Mortimer Wade and others. An order appointing commissioners to assess damages was reversed on an appeal taken by James Younglove ( 27 N. Y. Supp. 843 ), and he now moves for a modification of the decision by awarding him costs.
Granted.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Edwin Baylies, for appellant.
Andrew J. Nellis, for respondent village of Johnstown.
Philip Keck, for respondents Wade and others.
Henry W. Thorne, in pro. per.

This is a motion to modify and correct a memorandum of the decision of the appeal in the above-entitled matter, entered upon the clerk’s minutes, so as to award to the appellant costs at the same rate, and on appeal to this court in the final judgment in the action. The appeal in this case was taken from an order of the special term appointing commissioners to ascertain and assess the damages claimed by the landowners in proceedings for the extension of South Market street, in the village of Johns-town. The proceeding to extend South Market street, was an exercise of the right of eminent domain. It was a condemnation of land for public purposes; and it has been repeatedly held that proceedings for railway purposes were special proceedings; that an order appointing commissioners to appraise damages was a special proceeding, from which an appeal might be taken as such. Railroad Co. v. Davis, 43 N. Y. 137 ; In re Fowler, 53 N. Y. 60 . So, also, proceedings to take land, for public streets, or for the purpose of building a sewer, have been held special proceedings. In re One Hundred and Sixty-Third St, 61 Hun, 365 , 16 N. Y. Supp. 120 ; In re Wells Ave. Sewer, 46 Hun, 534 . By section 3240 of the Code it is provided that costs upon an appeal in a special proceeding taken to a court of record, where they are not specially regulated by the Code, may be awarded to any party, in the discretion of the court, at rates allowed for similar services, in an action brought in the same court or in an appeal taken from a judgment in the same court in a like manner. By chapter 270 of the Laws of 1854 it was provided that “in special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed,

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shall be at the rate allowed for similar proceedings in civil actions.” And it was held that the proceeding under the general railroad act was a special proceeding, and that, under such statute, costs should be allowed in such proceeding the same as in a civil action. Railroad Co. v. Davis, 55 N. Y. 145 . In Re Holden, 126 N. Y. 589 , 27 N. E. 1063 , it is held that section 3240 embodies that portion of chapter 270 of the Laws of 1854 above quoted, and approves of the decision of the Davis Case; and in Re Wells Ave. Sewer, supra, a proceeding to procure an easement in lands to construct a sewer, it was held that the proceeding was a special one, under section 3240 of the Code. The motion should be granted. All concur.

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