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In re Daly

37 N.Y.S. 128 Court N.Y. Gen. Term Decision date 1895-12-27 English

Delivered by PRATT, J.

Contents

Majority

p. 128
In re DALY, Commissioner.
(Supreme Court, General Term, Second Department.
December 27, 1895.)

Headnote

Condemnation Proceedings—Allowance to Counsel—Powers op Court.
Laws 1893, c. 189, § 24, providing that, in proceedings to acquire real estate and sanitary protection for the sources of water supply of New York City, “such allowances for counsel fees as may be made by order of the court shall be paid,” vests in the court the power to make allowances to counsel, and does not authorize the commissioners to do so.
Appeal from special term,- Putnam county.
Application by Michael T. Daly, as commissioner of public works of the city of New York, for and on behalf of the mayor, aldermen, and commonalty of the said city, to acquire real estate, under Laws 1893, c. 189, for the purpose of providing sanitary protection to the water supply of said city. From an order granting an allowance to the attorneys of record, the city appeals. Affirmed.
Argued before BROWN, P. J., and PRATT, J.
Francis M. Scott, for appellant.
A. J. Miller, for respondent.

This is an appeal from an order made at special term involving the allowance made attorneys of record in this proceeding. The statute authorizing and regulating the proceeding provides that “such allowances for counsel fees as may be made by order of the court shall be paid,” etc.[1] It is plain that the commissioners had no authority to fix any allowance, but the power was vested in the court. It was, therefore, a matter of discretion, to be fixed in view of all the circumstances. The sum allowed did. not exceed the limit prescribed by section 3253 of the Code of Civil Procedure, and was not an abuse of the discretion vested in the judge

1 Laws 1893, c. 189, § 24.

p. 129
presiding at special term. The case involved much labor and responsibility, and required great care and much time in its management. In addition, new duties were imposed upon the attorneys, subsequent to the hearing before the court upon the first presentation of the commissioners’ report. The proceeding involved the taking of 113 parcels of land, and the awards exceeded $150,000, and the time required was over two years. During all this time the case called for constant attention. Under all the facts and circumstances, we cannot say the amount allowed was unreasonable. Order affirmed, with costs and disbursements.