43 N.Y.S. 1073 | N.Y. Sup. Ct. | 1897
The motion for the confirmation of the commissioners’ report is not opposed and is granted.
The landowner presents an affidavit stating the history' of- this proceeding, showing among other things that it was commenced in January, 1895, and was heard before the commissioners in April and May of that year, and- that on such hearing a question of law arose as to whether or not the landowner was entitled to an award for the damages to the remainder of his land not taken, in con
Section .12 of the Grade Crossings Act, under which this proceeding was instituted, provides that upon confirming the report “the court-shall fix the amount of damages, costs and expenses allowed by law to be allowed the landowner and the petitioner, ■ and shall order the same to. be .paid by the railroad or railroads interested and the city as and in such proportion as shall have been fixed ” by a commission or by an agreement of the parties. ■ There is no provision of the Grade Crossings Act defining what are the costs and expenses allowed by law.
Justice Green reached the conclusion that the costs and -expenses allowed by law are to be determined from the provisions of section 3372 of the Code of Civil Procedure contained in the title known as the Condemnation Law; and he also held that the court, must be governed on that subject by the decision of the General Term in this department in the Matter of the Lake Shore & Michigan Southern Railway Co., 65 Hun, 538. The-records indicate that the other justices before whom the question has been presented were of the same opinion, and in this conclusion I fully concur, The alleged inconsistent rulings are merely different conclusions upon different facts addressed to the discretion of the court.
Section 3372 of the Code of Civil Procedure provides that “ if no offer was made (by the petitioner to the landowner) the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceedings, 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 court may also grant an additional allowance of. ■ costs not exceeding 5 per centum upon the amount awarded.”
The question came before Justice Green on a motion to confirm the first report of commissioners, and the papers before him evidently showed that the landowner had not encountered very great difficulty or incurred much expense in having his damages assessed, and. the motion was denied, not for want of power, but on the facts "of that case. Justice Green also distinctly held, and I concur in
In view of the opinion of the General Term, I think Justice Green did not intend to hold that the court should not make an additional allowance, excepting where it appears that the case was difficult and extraordinary within the meaning of the decisions upon that subject made under section 3253 of the Code, for no such limitation on the power of the court is contained in section 3372 of the Code, as construed by the learned opinion of the General Term. To warrant an additional allowance under this section of any considerable sum, the court should be satisfied that the proceeding was something more than an ordinary appraisal proceeding, that an unusual amount of time was necessarily consumed, or a large amount Was involved, requiring greater care and attention and responsibility on the part of counsel, or that other questions than those' ordinarily arising on eminent domain pro
The application now under consideration is meritorious. The questions involved on the hearing before the commissioners and before the court- on appeal were both difficult and extraordinary, although that was n'ot necessary to authorize an additional allowance, but it should be considered in determining the amount of such additional allowance. No offer was made to the landowner and no unreasonable price was placed upon his land which necessitated the proceeding in court. Perhaps'the Grade Crossings Act would not authorize the commissioners and interested railroad to make an offer to the landowner or agree with him upon his damages, but that is not the owner’s fault and he should not suffer in consequence. He is brought into court and his land is taken in the interests of the public, though he may. not wish to sell. The property involved in the proceeding was of great value, as shown by the final award. This justified the landowner in employing able counsel to carefully look after his interests. His efforts to show a large item of his damages by legal evidence were opposed by eminent counsel representing the grade crossing commission and interested railroad, who successfully contended before the. commissioners for a construction of the Grade Crossing’s Act which would have deprived him, in this proceeding at least, and perhaps forever, of $15,800 damages actually sustained. The prevailing opinion on the appeal in this proceeding shows that the commissioners excluded the evidence . as to damages upon the theory that the work contemplated would only constitute a change of grade of the street and that their ruling was attempted to be supported on appeal upon the same theory. Had such attempt been successful the landowner’s only, remedy would have been an application addressed to the discretion of the grade crossing commission or -by. petition under the city charter to have the assessors assess his damages upon other lands in the city benefited by the proceeding, and in the latter case the railroad company would not be liable under its contract for any, part of the damages. Such were not adequate remedies for the great damages he has sustained.
On the final hearing, under the rule laid down by the Appellate Division (6 App. Div. 327), it was necéssary to show the effect of the improvement which was to be made by the grade crossing
In the case last cited the General Term say: “ We have examined the appeal from the order making an allowance of 5 per cent., on the amount of the judgment and which is .$215. We think the various proceedings in this action, including a commission and two trials, will warrant the allowance.” '
In Gooding v. Brown, 35 Hun, 156, the court, considering the effect of the amount involved on the question of extra allowance, said: “The amount involved in this case very likely gave the defendant an anxiety and to their attorney a responsibility felt and appreciated, which would not be had or assumed in a controversy relating to a case of less magnitude in that respect. That furnishes a reason for bringing to the management of a case more care and the advice and skill of eminent counsel and as a result increased and unusual expense to the party.”
Since the decision of Justice Green additional allowances have been made by different justices of this court in proceedings under the Grade Crossings Act and where. no appeal had been taken and there had been only one trial before the commissioners. Such allowances have varied according to the facts presented on- each particular motion, running in one case as high as 3 per cent, upon the amount involved. The costs allowed the landowner to b'e taxed, under section 3372 of the Code, are limited to-such as might be taxed, of course, by a defendant in an action, the only difference being that by virtue of the Grade Crossings Act they must be fixed by the court and not taxed by the clerk.
I am of the opinion that the landowner cannot be allowed for the fees of expert witnesses, for such disbursements could not be taxed in an action. The items- of costs allowed are indicated upon the bill of costs filed.
Under the facts presented on this application the lándowner is granted an additional allowance of 3i per cent, on the amount of
Pursuant to the provisions of the Grade Crossings Act and of ■the contract between the petitioner and the New York Central <& Hudson River Railroad' Company,' as shown by the affidavit of the attorney for the petitioner, filed, the total awards, damages, costs' and expenses, fixed and allowed, are apportioned betwéen the city and the railroad company and directed to be paid as follows: By the city of Buffalo, 33 1-3 per cent., and by the New York Central & Hudson River Railroad Company, 66 2-3 per cent.
Ordered accordingly.