City of Brooklyn v. Long Island Water-Supply Co.

Majority

p. 991

(88 Hun, 176.)

CITY OF BROOKLYN v. LONG ISLAND WATER-SUPPLY CO.

(Supreme Court, General Term, Second Department.

June 14, 1895.)

Headnote

1. Costs—Extra Allowance—Special Proceedings.

Code Civ. Proc. § 3340, authorizing an award of costs in a special proceeding at the same rates allowed for similar services in an action, does not empower the court to grant an extra allowance in a special proceeding.

3. Same—Condemnation Proceedings.

Code Civ. Proc. § 3372, authorizing an extra allowance in condemnation proceedings when the compensation awarded exceeds the amount of plaintiff’s offer, applies only to proceedings under the general condemnation law, and not to those under a special statute which does not provide for any offer. 32 N. Y. Supp. 182 , reversed.

Pratt, J., dissenting.

p. 992

Appeal from special term, Kings county.

Application of the city of Brooklyn for authority to acquire the property and franchises of the Long Island Water-Supply Company. From an order ( 32 N. Y. Supp. 182 ) granting an extra allowance to the company, the city appeals.

Reversed. ■

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Henry Yonge, for appellant.

Thomas E. Pearsall, for respondent.

I am of the opinion that the court had no power to grant the order appealed from. Section 3240 of the Code of Civil Procedure authorizes an award of costs in special proceedings at the same rates allowed for similar services in actions. But this section does not empower the court to grant an extra allowance. In re Holden, 126 N. Y. 589 , 27 N. E. 1063 . This proceeding was not instituted under the general condemnation law, but pursuant to chapter 481, Laws 1892, and therefore the order cannot be sustained under section 3372 of the Code. Moreover, the conditions do not exist under which, alone, costs and allowance can be granted to a property owner under the latter section. That section provides for an offer by the plaintiff to purchase the property, which it proposes to take at a specified price. If the offer is not accepted, and the compensation awarded by the commission does not exceed the amount of the offpr, with interest from the time it was made, no costs can be allowed either party; and it is only when the compensation awarded exceeds the amount of the offer, with interest, as aforesaid, that the court may grant costs and an allowance to the defendant, to be paid by the plaintiff. No offer was made by the city in this case, and none was necessary under the act which authorizes this proceeding. The order must be reversed, and the motion denied.

DYKMAN, J., concurs. PRATT, J., dissents.

Cases cited

In re Holden 126 N. Y. 589 N.Y. 1891-06-02 p. 992