Herb v. City of New York — 98 N.Y.S. 334

Majority

p. 334

(112 App. Div. 163)

In re AMSTERDAM AVE. HERB v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, First Department.

April 6, 1906.)

Headnote

Appeal from Special Term, New York County.

Proceedings by the city of New York to acquire title to certain lands on the easterly side of Amsterdam avenue, between 139th and 140th streets, alleged to belong to one Jacob Herb. An award was made in favor of Herb. From an order taxing costs and granting an extra allowance in his favor, the city appeals.

Reversed.

> Argued before INGRAHAM, McRAUGHRIN, RAUGHRIN, CRARKE, and HOUGHTON, JJ.

Theodore Connoly, for appellant. '

Joseph A. Flannery, for respondent.

Proceedings were instituted by the city of New York to,acquire title to certain lands on Amsterdam avenue, between 139th and 140th streets, owned by the respondent, Herb. ’ After the commencement'of such proceedings an offer was made under section 1436c of the Greater New York charter (Laws 1901, p. 609, c. 466) to sell this land to the city for the sum of $56,000. The offer was dated January 9, 1905, and was signed, “Jacob Herb, by Joseph A. Flannery, Attorney.” The offer was rejected, and title subsequently acquired by the city, for which an award was made to Herb of $62,500. Thereafter a motion was made on behalf of Herb, under section. 1436c of the Greater New York charter, to tax his costs in the proceeding and for an extra allowance. The motion was granted, and his costs were directed to be taxed as in an action, together with an extra allowance of $500, and the city has appealed.

For the reasons assigned in the opinion delivered on the appeal from an order, in a similar proceeding, in which costs and an extra allowance were'allowed to John O. Baker, decided, herewith ( 98 N. Y. Supp. 331 ), the order appealed from must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

All concur.