Manhattan Railway Co. v. Kent — 62 N.Y. St. Rep. 569

Majority

p. 569

In the Matter of the Application of The Manhattan Railway Company et al., App’lts, v. Julia A. Kent, Individually and as Trustee, etc., et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed October, 1894.)

Headnote

Costs—Condemnation proceedings.

The defendants are entitled to costs in a condemnation proceeding, in the absence of proof that an. offer had been by the petitioner, though the parties were unable to agree as to the price of the land to be taken.

Appeal from an order of the supreme court, granting the defendants’ motion for costs and an extra allowance, and directing the modification of the final order so as to direct that the defendants recover their costs and allowance, and also from the final order in so far only as it is modifie'd by the former order.

William E. Godden, for app’lts; A. B. Oruikshank, for resp’ts.

We see no reason for interfering with the order appealed from. The statute is explicit in its terms defining the circumstances under which parties to these proceedings are entitled to costs. It is true that there was an adjudication of the superior court that the parties were unable to agree as to. a price, but there is no allegation in the petition or any evidence that any offer had been made which could possibly relieve the petitioners from the payment of costs.

Under these circumstances, under the statute, the defendants were entitled to the costs which were allowed them by the court.

The order should be affirmed with ten dollars costs and disbursements. . *

Present: Van Brunt, P. J., O’Brien and Follett, JJ.

Order affirmed, with ten dollars costs and disbursements.