Erie & Jersey Railroad v. Brown

107 N.Y.S. 989 | N.Y. App. Div. | 1908

Miller, J.:

This is an appeal from an order denying a motion for an extra allowance in a condemnation proceeding, in which the defendants were successful on the trial bf the issues raised by the .answer to the petition. The application for an additional allowance was denied' by the court at Special Term for want of power. The •appellants,' conceding that only such costs as are expressly allowed by statute are recoverable, rely upon the provisions of section 3369 of the Code of Civil Procedure for such statutory authority. The provision thus relied upon is as follows: “Judgment shall be entered pursuant- to the direction of the court or referee in the decision filed. If in favor of the defendant, the petition shall be dismissed, with costs io be taxed by. the clerk, at the same rates as are allowed, of course, to a defendant prevailing in- an action in. the Supreme Court, including the allowances for proceedings loefor'e. and after notice of trial” The appellants contend, that the word “ allowances” means “additional allowances.” We dp not so read the section. There is no provision for notice of trial in condemnar tion proceedings,, section 3367 of the Code of Civil Procedure providing that the court shall try the issues at such time and place as it may direct,, or that .it. may order the. sanie to be referred to a referee to. hear and determine. . The words italicised were,, therefore, intended to reinforce the words immediately preceding, and to make clear the intention that the' defendants should have all of the-allowances-specified-in section 3251 of the Code: of Civil Proced-; ure. If there coii-ld otherwise be any doubt about the meaning of the language used, that doubt would be removed by comparing it with, the language of section 3372,. regulating, the costs in' case of an award. .1 quote from said section: “ If the compensation awarded shall exceed the amount of the offer'with interest from the time it was made, or if no offer was made, the. court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding, to be taxed by the clerk at the same rate as is allowed, of course,, to the defendant when he- is the prevailing party in an action in the Supreme Court, including the allowances for proceedings, before and after notice of trial, and the cohort may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded”

The order should be affirmed.

Woodward, Jenks, Hooker and G-aynor, JJ., concurred.

Order- affirmed, with ten dollars costs and disbursements.