Manhattan Railway Co. v. Klipstein — 91 N.Y. Sup. Ct. 579

Majority

p. 579

In the Matter of the Application of the Manhattan Railway Company, Respondent, v. August Klipstein and Others, Appellants, Relative to Acquiring Title to Certain Real Property in the City of New York.

Headnote

Second motion for an additional allowance — when irregular and properly denied.

Where an order was made denying the defendants’ motion for an additional allowance of costs in a proceeding brought under chapter S3 of the Code of Civil Procedure to acquire certain street easements for the use of the plaintiff, a second motion made by the defendants for such additional allowance, if made without leave of the court, is irregular and the motion is properly denied.

p. 580

Appeal by the defendants, August Klipstein and others, from an order of the Supreme Court, granted at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of November, 1894, denying the defendants’ motion for an extra allowance.

Jolm E. Parsons, for the appellants.

Edwa/rd G. James, for the respondent.

In January, 1893, the plaintiff began this proceeding, under chapter 23 of the Code of Civil Procedure, to acquire certain street easements for the use of the plaintiff, without having previously made a written offer to purchase the property sought to be acquired at a specific price. The defendants interposed answers denying certain allegations in the petition, and setting up new matters in defense, and the issues joined were, by an order, referred .to a referee to hear and determine. The defendants appeared before the referee and objected to proceeding before him, on the ground that lie was disqualified from acting as a referee for the reasons then stated. The referee overruled the objections, and the defendants withdrew, but the proofs of the plaintiff were taken, and thereafter the referee reported in favor of the plaintiff upon the issues referred to him. The defendants moved to set aside the report, and the plaintiff for an order appointing commissioners. The defendants’ motion was denied, and the plaintiff’s granted. In August, 1893, the commissioners awarded the defendants Murphy and McCormack $62,500' and the defendant Klipstein $9,250. The defendants moved for a confirmation of the report of the commissioners and for an additional allowance of costs, which was decided January 17, 1894, the report being confirmed and an additional allowance denied. The court on deciding the motion said:

“ The awards in this proceeding to my mind are extremely liberal under the proofs. I cannot adjudge them excessive under the circumstances, the commissioners having had facilities for weighing the evidence superior to those of the court. An extra allowance of $1,800 was granted in the equity suit. None should be given here-

p. 581

The motion to confirm report is granted and for an extra allowance denied.. Orders to be settled on two days’ notice.”

Afterwards the defendants.made a sécond motion for an additional allowance, which came on to be heard November 21, 1894, and an order was entered denying the motion upon the ground that a previous motion for the same relief was made by the defendants and denied January II, 1894. From the order of November 21, 1894, the defendants appealed, but they have not appealed from the order entered on the decision of January 1 J, 1894 . The second motion, having been made without leave of the court, was irregular, was rightly denied, and the order entered thereon should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred in the result.

Order affirmed, with costs.