148 N.Y. 107 | NY | 1895
We fully agree with the opinion of the judge at Special Term that an extra allowance should be made to the appellant for defending the proceedings to acquire its property, provided the court had power to make such allowance. A person or corporation, whose property is sought to be taken under condemnation proceedings, is entitled to be heard at every step in the process, and in justice should be compensated not only for the land or property taken, but should be indemnified against all costs and expenses reasonably incurred either in resisting the appropriation or in the proceedings for ascertaining the compensation to be made. The special statute under which the proceedings in this case were instituted (Chap. 481 of the Laws of 1892) authorized the city of Brooklyn to acquire the property and franchises of the Long Island Water Supply Company, but made no provision for costs or allowances. Costs or allowances for expenses in legal proceedings depend upon statute, and, in the absence of any statute allowing them, none can be recovered. This proceeding was, under the nomenclature of the Code, a special proceeding as distinguished from an action. The Code authorizes costs to be given in a special proceeding at the *110
rates allowed for similar services in an action (Sec. 3240), but makes no provision for extra allowances in terms. The question has arisen whether, under this section, the court is authorized to award allowances in a special proceeding as it may do in an action, and it has been held that the section only refers to specific costs authorized in the section relating to costs in actions, and that allowances beyond such sums are not authorized. (Matter of Holden,
We are asked to incorporate into the act of 1892 section 3372 of the Code, or to consider the special act and the provisions of the Code as in pari materia, so as to apply section 3372 to the proceeding in question. But we fail to see how this is possible. Both statutes apply, it is true, to condemnation proceedings. But each is complete in itself and prescribes a system of procedure each for itself, having many points of similarity as also many points of divergence. Proceedings under the Code are "to be taken in the manner prescribed in this title." (Sec. 3359.) Under the special act the city of Brooklyn is authorized to take by condemnation the property of the Long Island Water Supply Company, "provided that the proceedings herein, hereinafter or hereby authorized shall be commenced within one year after the passing of this act." The costs and allowances authorized in condemnation proceedings under the Code by fair intendment relate to costs and allowances *112 in proceedings thereunder. The special act which prescribes an independent and different procedure makes no reference to costs, and the right to costs therein must be governed by the general statute as to costs in special proceedings. It would be judicial legislation, we think, to rule that because section 3372 gives the right to allowances in proceedings under the Code, that they should also be allowed under a subsequent special statute enacted to cover a case not within the general law and under which the applicant is disabled to avail himself of the opportunity by making an offer, to be exempted in a certain contingency from liability to costs, as under the general law.
If the special act had been passed before the Code, and the purpose of the special act could have been accomplished by proceedings under the general act, the procedure under the general act might have been followed by force of section 3383 of the Code, although the prior special act furnished a method of its own. But this is not that case. We feel compelled to follow the decision of the General Term, and its order should, therefore, be affirmed.
All concur, except BARTLETT, J., not voting.
Order affirmed.