20 N.Y.S. 573 | N.Y. Sup. Ct. | 1892
This is a proceeding instituted under title 1 of chapter 23 of the Code of Civil Procedure, entitled “Proceedings for the Condemnation of Beal Property. ” On presentation of the petition, the defendant Brinkman interposed an answer, but by stipulation of parties the answer was withdrawn, and the proceeding thereafter was continued practically as if no answrer had been interposed. No testimony was given before the commissioners nor considered by them except the question as to the value of the premises to be acquired, and they thereafter made their report that there should be paid to the defendants for the property condemned the sum of $550. On the application at special term of confirmation of the commissioners’ report, the defendants appeared, and made no opposition to the confirmation, but asked that the order direct that defendants recover of the plaintiff costs of the proceeding as in an action where trial has been had, and for an additional allowance of costs. It was conceded upon the hearing of the motion that no offer had been made by the plaintiff to purchase the property at a specified price. The report was confirmed. The defendants’ application was denied for the alleged reason that the court had not the' power to grant it. There was allowed by the order to the defendant Brinkman $25, together with disbursements.
Title I of chapter 23 of the Code of Civil Procedure was passed in 1890. It provides a new and complete system of practice for the condemnation of real property, which resembles in its main features the practice in ordinary actions. The proceeding is instituted by the service of a petition upon the owner of the land sought to be condemned in the same manner as an ordinary summons is served, with a notice of a time and place that it will be presented to a special term of the supreme court. On presentation of the petition, the owner may appear, and interpose an answer, which must contain a general orspeeific denial of each material allegation of the petition controverted by him, or of any knowledge or information thereof sufficient to form a belief, or a statement of new matter constituting a defense to the proceeding. The
The legislature obviously intended by this section to provide indemnity to an owner who has been subjected to the expense of an investigation in case of the failure of the petitioner to make a preliminary offer for the property. The steps in the proceeding are similar to those for the commencement and prosecution of an ordinary action. The petition is served in place of a summons. The owner is required to appear and look after the appointment of the commissioners. He is subjected to the trouble and expense of preparing for the hearing by procuring witnesses. There is the same necessity for counsel as in ordinary actions. The hearing in such cases frequently consumes considerable time. The questions involved are sometimes intricate, especially in cases where the land taken forms a part of a larger tract owned by the defendant, and the question, therefore, of damages to the remaining land is involved. The provision as to an allowance of additional costs does not depend, as in section 3253, upon an answer having been interposed, or upon the proceeding being difficult and extraordinary. Ho such condition is contained in the section, but the court is given the discretion to grant an additional allowance of costs when no offer has been made, as in this case. This provision was undoubtedly inserted with a view of giving the court the discretion of granting an additional allowance of costs for the purpose of compensating the owner, in a proper case, for the expense he may have been subjected to in summoning witnesses and attending the hearing before the commissioners with his counsel. In ordinary real-estate purchases the would-be purchaser negotiates with the owner as to the price to be paid for the land. When lands are to be condemned for public use, the petitioner is required by section 3372 to enter into negotiations with the owner, and make a reasonable offer for the property, or incur the liability to pay costs to the owner. The amount of costs to be recovered is not controlled by subdivision 3 of section 3251 of the Code, for the hearing before the commissioners is not in any sense a motion or a refer
Whether the defendant is entitled to a trial fee is a more difficult question. Tliere was no issue of fact or of law in the proceeding. Sections 3367 and 3372 speak only of trials in connection with issues raised by an answer. Strictly speaking, the hearing before the commissioners is not .a trial. It is more like an assessment of damages in an ordinary action, where no answer, has beeninterposed. While .the question is not free from doubt, we are inclined to think that the appellant was not entitled to a trial fee. The portion of the order appealed from should be modified so as to give the defendants, in addition to the $25 and the disbursements, the sum of $27.50 as an additional allowance of costs, and the defendants should recover of the plaintiff costs of the appeal. All concur.
