135 N.Y.S. 921 | N.Y. App. Div. | 1912
In 1905 an act was passed designed, among other things, to enable the city of New York to provide for an additional supply of pure and wholesome water, and to acquire the lands necessary for that purpose (Laws of 1905, chap. 724). For convenience of designation we shall refer to it as “The Water Supply Act.” Pursuant to its provisions, proceedings were taken to condemn lands belonging to appellants, known as parcel No. 5. Commissioners of appraisal reported that the owners thereof were entitled to an award of $76,200, with
The respondent contends in the first place that the Water Supply Act confers no authority upon the court to make allowances for any amount to those persons whose lands are condemned in accordance with the provisions thereof, and cites in support of such contention Matter of Low (103 App. Div. 530) and Matter of Rapid Transit R. R. Commissioners (197 N. Y. 81, 110). The point seems not to have been raised in the court below, and the city does not appeal from so much of the order as granted allowances to the extent of $2,000. .But we deem this contention without merit. Both of the cases relied upon arose under the Rapid Transit Act (Laws of 1891, chap. 4, and the acts amendatory thereof). The language of the Water Supply-Act. differs materially from that contained therein. By section 62 of the Rapid Transit Act (Laws of 1891, chap. 4, as added by Laws of 1894, chap. 752, and amd. by Laws of 1909, chap. 498)
. Neither is there any general policy of the law which would-require the hmitation of allowances to the sum of $2,000. The General Condemnation Law (Code Civ. Proc. §§ 3357-3384), in that portion thereof relating to allowances in addition to costs, specifies the amount thereof as a sum “not exceeding five per centum upon the amount awarded.” (See § 3372.) No other limitation appears therein. The analogy between proceedings taken under the Water Supply Act and the General Condemnation Law is closer than between such proceedings and the actions or special proceedings referred to in either section 3253 or 3254 of the Code of Civil Procedure.
So much of the order as is appealed from should be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term to consider the application for allowance by way of counsel fees upon the merits.
Thomas, Carr and Woodward, JJ., concurred; Hirschberg, J., dissented.
Order, in so far as appealed from, reversed, with ten dollars costs and disbursements, and proceeding remitted to the Special Term to consider application for allowance by way of counsel fee upon the merits.
See, also, Laws of 1910, chap. 205, amdg. said § 62.—[Rep.