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

There can be no question that an allowance should be made to the defendant for defending the proceedings to acquire its property, provided the court has power to make such an allowance. I think that the court has the power. Under section 3240 of the Code, costs in a special proceeding, where they are not specially regulated, may be allowed to any party at the rates allowed for similar proceedings in an action. In Railroad Co. v. Davis, 55 N. Y. 145 , it was held that the right to grant extra allowances was confined solely to actions, and could not be granted in special proceedings. In Re Holden, 126 N. Y. 589 , that doctrine has been reiterated emphatically. But, since the time when the two decisions cited were made, the Code has been altered by adding thereto the chapter called the “ Condemnation Law.” By this addition, § 3372, the court is expressly authorized to grant to the property owner an additional allowance, not exceeding 5 per cent, on the amount awarded. This change in the law has, in my judgment, abrogated the effect of these decisions, so far as it relates to proceedings to condemn land, even as to those which are not taken under the particular provisions of the law cited. The condemnation law is general. It was intended by it to reverse the rule announced by the court which forbade allowances in such proceedings, and to enact a new rule, to wit, the allowance of an