Majority
p. 892In the Matter of the Application of Edward B. Long et al., Trustees of the Village of White Plains, to acquire certain lands for sewerage purposes. (Supreme Court, General Term, Second Department, Filed July 2, 1891.)
Headnote
Costs—Special pboceedings—Code Civ. Pito., § 8240.Where there has been a trial of the issues raised in a proceeding to acquire land for public purposes and an appeal taken from the order granting the petition, the case is one within § 3240 of the Code, and costs as in an action may properly be allowed.
Appeal from order denying motion to retax costs."
This is a proceeding to acquire the lands of Charles Butler and others to construct and maintain the sewerage system of the village of White Plains.
On the application to J ustice Barnard for the appointment of commissioners of appraisal, Charles Butler appeared by attorney, served a verified answer denying many of the allegations of the petition and raising several issues of fact and of law and asked for a dismissal of the petition.
The issues raised by this answer were tried by the court, evidence being introduced by Mr. Butler and the applicants.
The court overruled Mr. Butler’s objections and found that it was necessary to acquire his land in order to construct this sewerage system.
Findings of fact and conclusions of law were signed by the trial court.
From-the order granting the petition Mr. Butler appealed to the general term, where the order was affirmed, with costs. 34 N. Y. State Rep., 778.
W. P. Butler, for app’lt; H. T. Dykman, for resp’ts.
—We think the costs were properly taxed and must stand. This matter comes under § 3240 of Code of Civil Procedure. There was a trial and questions of law and fact litigated,
p. 893
and costs having been allowed as for like services in a civil action, they must stand.
Although in the form, of an appeal from an order, there were issues tried and an adjudication had in a special proceeding.
Order affirmed, with costs.
Barnard, P. J., concurs; Dykman, J. not sitting.