147 N.Y.S. 195 | N.Y. App. Div. | 1914
On March 13, 1912, the above-entitled special proceeding was instituted to lay out, open and extend School street from Nepperhan avenue to Elm street and Palisade avenue in the city of Yonkers, and on March 30, 1912, commissioners of estimate were appointed. Subsequently (the date of their report is not given) the commissioners submitted their report as to five of the damage parcels affected by said proceeding, and on December 14,1912, this report was confirmed. Upon the same day an order was made granting to the attorneys for the owners of four of such damage parcels costs of the proceeding, and in addition thereto an allowance of $1,500. To the attorneys for the owner of the fifth parcel costs were given and an allowance of $750. On June 9,1913, the commissioners of estimate filed a second report as to twenty-four other parcels shown on the damage map, and on the 14th day of June, 1913, an order was entered confirming this report. Subsequently, and on November 24, 1913, an order was entered allowing taxable costs to the several attorneys who appeared for the owners of such damage parcels, and in addition thereto allowances, none of which, however, exceeded five per cent of the amount of the respective awards. An appeal was taken from each of these orders.
There is nothing to show that if the power to award costs and allowances existed the discretion of this court at Special Term was unwisely exercised. The question to be considered, then, is solely a question of power. Statutory authority must be found to justify the court in awarding either costs or allowances in a special proceeding for the condemnation of land for a public improvement. (Rensselaer & Saratoga R. R. Co. v. Davis, 55 N. Y. 145; Matter of Simpson, 26 Hun, 459; Erie & Jersey Railroad Co. v. Brown, 123 App. Div. 655; Matter of City of Brooklyn, 148 N. Y. 107; Matter of Rapid Transit R. R. Comrs., 197 id. 81; Matter of Low, 208 id. 25.) The act under which this proceeding was instituted was entitled
The orders appealed from must, therefore, be modified by striking out therefrom all provisions therein contained granting allowances in addition to costs to the several persons whose property has been acquired for the purpose of this improvement, and as so modified such orders must be affirmed, without costs.
Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.
Orders modified by striking out therefrom all provisions therein contained granting allowances in addition to costs to the several persons whose property has been acquired for the purpose of this' improvement, and as so modified affirmed, without costs.