209 A.D. 319 | N.Y. App. Div. | 1924
The New York, Lackawanna and Western Railway Company crosses a public highway, known as the River road in the town of Nichols, Tioga county, twice at grade within about 2,000 feet. The easterly crossing is called Stewart’s crossing and the westerly Park’s crossing. The highway, at Stewart’s crossing, passes from the northerly to the southerly side of the railroad line, proceeds then about parallel to the railroad to Park’s crossing, and there returns to the northerly side of the railroad. The town of Nichols, under section 91 of the Railroad Law, instituted a proceeding before the Public Service Commission, Second District, to have Park’s crossing closed and discontinued and a highway constructed along the northerly side of the railroad company’s right of way between the two crossings. In its petition it stated that the easterly crossing could not be discontinued because a highway, less used, branched there from this main highway and continued southerly. On August 17, 1920, all preliminary proceedings having been regularly had and all interested parties having been heard, the Public Service Commission determined that Park’s crossing should be closed and the traffic diverted to a new highway to be constructed on the north side of the railroad company’s line. Its order specifically described the land to be taken for, and fixed the location of, the new highway to be constructed, with directions for its manner of construction and protection, and
The commissioners • of appraisal “ unanimously decided and determined and do hereby find that the compensation to be awarded to Sumner Park and OHe M. Park, his wife, the owners of the land herein sought to be condemned, to be in the sum of two thousand four hundred dollars and thirty-seven cents ($2,400.37). And we do further report that said determination includes damages which we have allowed as a result of the closing of the old highway and the closing of the pubHc crossing.” They further state that they separately determine the amount of damages for the land taken on the northerly side of the highway and to the remainder of the farm because of the taking of such lands, without considering the question of any damage by reason of the closing of the public crossing over the railroad right of way and the closing and abandonment of any part of the old highway, to be $279.37.
On December 15, 1921, an agreement was entered into between the railway company and Sumner Park, by which the railway company will maintain a farm crossing at the Park’s crossing for the benefit of Park and will provide suitable gates for the private crossing.
The appeal here is from the final order of confirmation and brings up for review aU questions subsequent to the judgment. No question as to the judgment of condemnation or regularity of the proceedings is raised.
By its petition this proceeding was strictly limited to the lands necessary for the new highway northerly of the railroad. The scope of the petition was not enlarged by filing a map. It is nowhere suggested in the petition that the highway on the southerly side
These defendants will suffer no damage to their farm as a whole by reason of the construction of the new highway. This highway lies parallel and near to the railroad lands, and their farm was divided by the railroad fine before this proceeding was taken. The value of the small piece of land between the railroad and the new highway alone has been affected. The separate award, made by the commissioners of appraisal, for the land taken for the highway, includes compensation for any damage done to this “ small piece of land.” The defendants cannot have compensation for anything taken other than that for which the Commission has allowed in the separate award the sum .of $279.37.
There was also error in the award of costs.
This proceeding was begun before the Condemnation Law (Consol. Laws, chap. 73 [Laws of 1920, chap. 923], as amd. by Laws of 1921, chap. 150, and subsequent statutes) took effect. This chapter (§ 28) repeals the provisions of the Condemnation Law in the Code of Civil Procedure (Chap. 23, tit. 1). There is, however, no variation in the provisions for costs in the two statutes. We shall hereafter refer to this chapter 73 of the Consolidated Laws as the Condemnation Law.
(1) The plaintiff here made a timely written offer to the owner to purchase the property for $500; and, when the owner’s wife was brought in by amended petition, plaintiff made another written offer to purchase her interest for $50. The compensation which could properly and legally be made was fixed at $279.37, a sum less than the amount of the offer with interest from the time it was made. No costs could be allowed to either party under this condition.
(2) There was a trial. After the defendants’ objections to the petition had been overruled, the defendants filed an answer, in which the material allegations of the petition were denied. Most of these denials did not raise issues triable in the action, because the Public Service Commission, after all of said parties had been heard, had determined these issues. But the petition did allege, as it must under the statute (Code Civ. Proc. § 3360, subd. 5; Condemnation Law, § 4, subd. 5), “ that the plaintiff has been unable to agree with the owner of the property for its purchase, and the reason of such inability,” and the allegation is denied by the defendants Park. This issue was not before the Public Service Commission; it was open for trial. The defendants Park now insist the trial was unnecessary, but they filed their answer. True it is this denial was unjustified; on the trial the facts necessary to sustain the allegation were proved and the owner admitted them, but the answer was not withdrawn. The court is required to try any issue raised by the petition and answer, or it may refer the same to a referee to hear and determine. (Code Civ. Proc. § 3367; Condemnation Law, §11.) A trial of this latter issue at least was necessary and was had. In consequence the plaintiff was entitled to recover of the answering defendants the costs of the trial caused by the interposition of this unsuccessful defense. The Special Term did not make such allowance of costs.
The Condemnation Law, as it was in the Code of Civil Procedure and is now, makes no provision for costs on an appeal from a final order in condemnation proceedings. The costs on the appeal are in the discretion of the court. (Code Civ. Proc. § 3240; Civ. Prac. Act, § 1492.) While in law a client must suffer the consequence of the mistakes of his attorney, in fairness and where the discretion of the court is invoked, the court may as far as possible relieve him of the burden of such mistakes. There was no reasonable ground for a trial of any issues in this proceeding.
This court may not modify the report; it may either confirm the report or set it aside for error of law in the proceeding before the commissioners, or on the ground that the award is excessive or insufficient. If the report is set aside, it may direct a rehearing before the same or new commissioners. (Matter of Johns v. Village of Salamanca, 129 App. Div. 717; Matter of New York Municipal R. Corp. v. Weber, 226 N. Y. 70, 72; Code Civ. Proc. § 3377; Condemnation Law, § 21.)
The final order should be reversed for error of law, without costs to any party, and the proceedings remitted to the same commissioners to make and report a new appraisal in harmony with this opinion.
All concur; McCann, J., not sitting.
Final order reversed on the law, without costs to either party, and the proceeding remitted to same commission to take and report a new appraisal in harmony with opinion.
Since amd. by Laws of 1921, chap. 698.— [Rep.
Since amd. by Laws of 1921, chap. 698.— [Rep.