In re Low

Citation208 N.Y. 25,101 N.E. 706
PartiesIn re LOW et al. In re JORALEMON STREET.
Decision Date25 March 1913
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Applications by Seth Low and others, constituting the Board of Rapid Transit Railroad Commissioners of the City of New York, for the appointment of commissioners of appraisal, relative to acquiring a perpetual underground right of way under Joralemon Street and other streets and avenues. From an order of the Appellate Division (151 App. Div. 572, 922,136 N. Y. Supp. 360, 1140) affirming an order allowing costs to Hannah G. Mynderse, as executrix, and others and additional amounts as extra allowances for counsel fees and disbursements, the city of New York and others appeal. Modified and affirmed.Archibald R. Watson, of New York City, Corp. Counsel (Clarence L. Barber, of New York City, of counsel), for appellants.

Frederick B. Campbell, of New York City, for respondents Mynderse and others.

I. N. Sievwright, of New York City, for respondents Packer and others.

HISCOCK, J.

In 1903 proceedings in each of the above-entitled matters were instituted by the petitioners under the so-called Rapid Transit Act (Laws of 1891, c. 4), as amended from time to time, to acquire certain property, easements, and rights in and through Joralemon street and other streets and avenues for the purpose of constructing underground tunnels. The proceedings were directed in part against the property owners, who now are respondents, or whose interests, in case of death, are represented by respondents, on these appeals, and on the conclusion of said proceedings in the Supreme Court an order was made allowing said property owners costs ‘as taxed’ and also various amounts by way of additional allowance for counsel fees and disbursements. The only question presented on these appeals concerns the power of the court to award and allow such costs and disbursements; if it possessed the power, no complaint is made concerning the manner and extent in and to which it exercised it.

By amendment to the original Rapid Transit Act, especially as made by chapter 752 of the Laws of 1894, provision was made for the acquisition by the city of New York, acting through its board of rapid transit commissioners by condemnation proceedings of such property, easements, and rights as might be necessary for the construction of additional railway facilities as outlined by said legislation. The provisions added to and incorporated in said act upon this subject prescribed a complete plan and course of procedure for such condemnation proceedings from the commencement to the end, and, while in some respects they were similar to the provisions of the Code covering the subject of condemnation, in many others they were substantially, if not radically, different therefrom.

[1] It is or must be conceded that costs cannot be allowed by the court in condemnation proceedings unless some statutory authority is found therefor, and, however much we may sympathize with counsel for the respondents in their claim that their clients are equitably entitled to such costs in these very important proceedings, we have been unable to find any such statutory authority, although following with diligence the attempts of counsel to point out the same. Naturally we should expect that, if the Legislature intended to allow costs and disbursements to property owners in these condemnation proceedings, it would make some direct provision therefor in the statute under which the proceedings were being prosecuted. It has, however, been decided by this court in these proceedings that no such authority is found in the Rapid Transit Act, and therefore we need spend no time in searching the statute therefor. Matter of Rapid Transit R. R. Com'rs, 197 N. Y. 81, 90 N. E. 456,18 Ann. Cas. 366.

[2] It is urged, however, that the Greater New York charter (Laws 1901, c. 466) contains provisions permitting the award of costs in condemnation proceedings instituted in behalf of the city which are broad enough to cover the ones before us, and the attempt is made to support this claim by special reference to chapter 736 of the Laws of 1904, whereby is amended section 998 of said charter. We are, however, utterly unable to make that section, either as then or thereafter amended, answer any such purpose. In the first place it is found in a title relating to the acquisition of property for purposes other than those involved here by proceedings provided for in the statute of which said section is a part, and cannot be applied to these proceedings. In the second place, said section, when read in the light of the preceding ones, even if applicable to these proceedings, would not by any reasonable construction justify an allowance of costs to these respondents.

[3] In the next place, it is urged that said Rapid Transit Act, by reference to provisions of the Code of Civil Procedure concerning condemnation proceedings, authorizes the inference that...

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