City of Brooklyn v. Long Island Water-Supply Co.
| Decision Date | 19 December 1895 |
| Citation | 42 N.E. 413,148 N.Y. 107 |
| Parties | CITY OF BROOKLYN v. LONG ISLAND WATER-SUPPLY CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Second department.
Application by the city of Brooklyn for authority to acquire the property and franchises of the Long Island Water-Supply Company. From an order of the general term (34 N. Y. Supp. 991) reversing an order of the special term (32 N. Y. Supp. 182) granting the company an extra allowance, the city appeals. Affirmed.
William C. De Witt and Thomas E. Pearsall, for appellant.
Albert G. McDonald, for respondent.
We fully agree with the opinion of the judge at special term that an extra allowance should be made to the appellant for defending the proceedings to acquire its property, provided the court had power to make such allowance. A person or corporation whose property is sought to be taken under condemnation proceedings is entitled to be heard at every step in the process, and in justice should be compensated, not only for the land or property taken, but should be indemnified against all costs and expenses reasonably incurred either in resisting the appropriation or in the proceedings for ascertaining the compensation to be made. The special statute under which the proceedings in this case were instituted (chapter 481, Laws 1892) authorized the city of Brooklyn to acquire the property and franchises of the Long Island Water-Supply Company, but made no provision for costs or allowances. Costs or allowances for expenses in legal proceedings depend upon statute, and, in the absence of any statute allowing them, none can be recovered. This proceeding was, under the nomenclature of the Code, a special proceedings, as distinguished from an action. The Code authorizes costs to be given in a special proceeding at the rates allowed for similar services in an action (section 3240), but makes no provision for extra allowances, in terms. The question has arisen whether, under this section, the court is authorized to award allowances in a special proceeding, as it may do in an action, and it has been held that the section only refers to specific costs, authorized in the section relating to costs in actions, and that allowances beyond such sums are not authorized. In re Holden, 126 N. Y. 589, 27 N. E. 1063. This is decisive of the present case, unless section 3372 of the Code, contained in title 1 of chapter 23, prescribing proceedings for the condemnation of real property, applies to the proceedings taken in this case under the special statute of 1892, passed after the enactment of the section referred to. That section authorizes the court to make an additional allowance to the defendant in a condemnation proceeding where the plaintiff, before commencing the proceeding, has made an offer in writing to purchase the property at a specified price, which was rejected, and an award of a greater sum was made, or where the plaintiff made no offer and the case proceeded to an award. If an offer was made and not accepted, and the compensation awarded did not exceed the offer, then no costs to either party are to be allowed. If this section is applicable to the proceedings in this case, there would be no difficulty in maintaining the contention of the appellant. But this section is one of the provisions in the procedure prescribed for proceedings under chapter 23 of the Code. The title in which it is contained regulates the practice in condemnation proceedings taken under its provisions. Section 3359 prescribes that, ‘whenever any person is authorized to acquire title to real property for a public use by condemnation, the proceeding for that purpose shall be taken in the manner prescribed in this title.’ There follow minute provisions, prescribing the method of instituting the proceeding, and the practice in every stage thereof until the final judgment; and section 3372, which prescribes the conditions under which costs and allowances may be made, immediately follows the section relating to the final order to be entered on the confirmation of the report of the...
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