29 N.Y.S. 1030 | N.Y. Sup. Ct. | 1894
This is a motion to modify and correct a memorandum of the decision of the appeal in the above-entitled matter, entered upon the clerk’s minutes, so as to award to the appellant costs at the same rate, and on appeal to this court in the final judgment in the action. The appeal in this case was taken from an order of the special term appointing commissioners to ascertain and assess the damages claimed by the landowners in proceedings for the extension of South Market street, in the village of Johns-town. The proceeding to extend South Market street, was an exercise of the right of eminent domain. It was a condemnation of land for public purposes; and it has been repeatedly held that proceedings for railway purposes were special proceedings; that an order appointing commissioners to appraise damages was a special proceeding, from which an appeal might be taken as such. Railroad Co. v. Davis, 43 N. Y. 137; In re Fowler, 53 N. Y. 60. So, also, proceedings to take land, for public streets, or for the purpose of building a sewer, have been held special proceedings. In re One Hundred and Sixty-Third St, 61 Hun, 365, 16 N. Y. Supp. 120; In re Wells Ave. Sewer, 46 Hun, 534. By section 3240 of the Code it is provided that costs upon an appeal in a special proceeding taken to a court of record, where they are not specially regulated by the Code, may be awarded to any party, in the discretion of the court, at rates allowed for similar services, in an action brought in the same court or in an appeal taken from a judgment in the same court in a like manner. By chapter 270 of the Laws of 1854 it was provided that “in special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed,