JPer Curiam,.

The application in this case was a special proceeding (Code Civ. Pro., §§ 3333, 3334), and according to the general rule the costs were in the discretion of the court (§ 3240). The claim that the proceeding having been instituted by the petitioner to acquire a crossing over the track of the appellant, the latter could not be compelled to pay the cost of the proceeding, under the decision in Matter of Walsh (94 N. Y. 287), is not well founded. The general statute under which the respondent is incorporated confers the right upon one railroad to cross the track of another, and requires the company owning the intersected road to unite with the owner of the new road in forming the crossing and to yield the necessary facilities, and if the companies cannot agree upon the amount of compensation, or manner of crossing, the same is to be determined by commissioners. (Laws of 1850, chap. 140, § 28.) The case shows that the appellant in substance declined to permit the petitioner to cross its tracks, and when the commissioners were appointed, the question litigated before them related to the place and manner of crossing, whether it should he at, or above, or below grade, and not at all to the question of compensation, as to which no evidence was given. The points of crossing considered by the commissioners, and as to which the evidence related, were a crossing on the highway and one outside of the highway but near to it, and there was no practical difficulty in giving evidence bearing upon the amount of compensation, if that question was deemed important.

Upon the facts presented to the court on the motion in respect to costs, the court would have been justified in finding that the appellant, on the hearing before the commissioners, waived all claim for compensation beyond nominal damages. The litigation, from the first, has been most determined and *342 persistent; on the one side to secure, and on the other to prevent a crossing as desired by the respondent. There is no constitutional right involved in the order of the Special Term imposing the costs of the litigation upon the appellant, and we cannot review its discretion. It is certainly not impossible to conceive of a case where an application fot a crossing may be met with such dilatory and obstructive proceedings on the part of the company over whose road the crossing is desired, so as to justify the imposition upon the latter of the costs of the litigation.

In this case the commissioners awarded to the appellant one dollar damages, and in view of the facts, and the absence of all evidence as to any pecuniary injury, or as to the pecuniary value of the right acquired by the respondent, or of the loss which would be sustained by the appellant, we cannot say, as matter of law, that the amount awarded was inadequate. (In re Prospect Park, etc., R. R. Co., 85 N. Y. 489.)

The order of the General Term affirming the orders of the Special Term confirming the report of the commissioners, and adjudging that the respondent is entitled to costs, etc., should be affirmed, and the appeal from the order denying the motion to remit the proceedings to the commissioners should be dismissed, with costs to the respondent of one appeal.

All concur, except Huger, Oh. J., not sitting, and Sapallo and Miller, JJ., who dissent as to costs.

Ordered accordingly.