
    In the Matter of the Application of the Village of Theresa, by Its Electric Light Commission, Appellant, Relative to Acquiring Title to Certain Real Property in the Town of Theresa, Jefferson County, New York. Fred L. Santway, Respondent.
    Fourth Department,
    July 9, 1907.
    Eminent domain—costs.'
    When on condemnation proceedings to acquire lands for the ere.ction of a municipal lighting plant, the landowners refuse an offer to purchase and interpose an answer denying the material allegations of the petition and alleging that public use -does not require the condemnation of the property, on which issue they are defeated but are successful in obtaining a more favorable award than the sum offered, both parties are entitled to costs; to wit, the petitioner is entitled to the cost of the trial of the issue before the court, and the defendant to a full bill of costs for the proceedings before -the commissioners. In such case the trial of the issue as raised by the answer aud the proceedings before ‘the commissioners' are separate and independent as regards the question of costs. . ■ .
    McLennan, P. J., dissented,
    Appeal by the petitioner, -the Village of Theresa, by its electric light commission, from so much of an order of-the Supreme Court, made at' the Jefferson Special Term and entered in the office of the clerk of the county of Jefferson on the 22d day of October, 1906, as denies the petitioner’s motion to amend a judgment of condemnation theretofore entered herein so as to award costs to the petitioner and awards costs against the petitioner, together with an extra allowance of five per cent, and also from an- order entered in said clerk’s office on the 20tlv day of November, 1906,-denying the petitioner’s motion for a retaxation of costs.
    
      
      G. S. McCartin and John N. Carlisle, for the appellant.
    
      Joseph Atwell and J. F. La Rue, for the respondent.
   Kruse, J.;

The sole question presented by this appeal is which of the parties, "if either, is entitled to costs of the proceeding. ■

The village of Theresa,- by its electric light commissioners, desiring to acquire. certain real estate, situate in said village, owned by the defendants, made its petition in the usual form, serving a copy thereof upon the defendants, with the usual notice of motion. The defendant Fred L. Santway appeared at Special Term pursuant' to said notice, and filed an answer denying many of the material allegations of the petition, and alleging affirmatively among other things that the public use did not require '.the condemnation of 'the real property. Among other allegations contained in the petition was the statement that the village through- its commissioners had offered the defendant Fred L. Santway $550 for his undivided interest in the premises.

The.'issues thus raised by the answer to the petition were tried at the Jefferson County, May, 1906, Special Term. The trial justice made his decision in' writing, making findings of fact and directing judgment of condemnation, and appointing commissioners to ascertain the compensation to be made to the owners of the property. The decision states that the public use requires that the property should be condemned for the use of'the village in connection with its electric light plant.; that the village has been unable. to agree with the owners of the property- for its purchase; and that an offer was made but refused by thé defendant Fred L. Safitway.The commissioners appraised the interest of Fred L. Santway and his wife,, which included the water rights, at $590, awarding-to. the wife for her inchoate right of dower, $.95.

Upon the coming in of that report, a motion was made.-to don-firm the same, and at the same- time a motion was made by the petitioner, the Village of Theresa, to modify the judgment of condemnation so as to allow costs to it. That motion was denied, and the commissioners’ -report was- confirmed and costs awarded to the defendants. From that order, so far as it denies costs to the village-, and awards costs to the defendants, the village appealed as has been stated. Thereupon a full hill of costs was. taxed by the clerk in favor of the defendant Fred L. Santway and against the objection of the village. The motion of the petitioner for relaxation was denied at Special Term, and from an order entered thereupon the village also appeals.

The.question presented must be determined- by the provisions of sections 3369 and 3372 of the Code of Civil Procedure, which relate to costs in proceedings for the condemnation of real property. Condemnation proceedings are instituted by the presentation of a petition by the plaintiff to the Supreme Court setting forth certain facts which are therein specifically stated. (Code Civ. Proc. § 3360.) The owner may appear and interpose an answer, which must contain a general or specific denial of each material allegation of the petition controverted by him, or of any knowledge or information thereof, sufficient to form a belief, or a statement of new matter constituting a defense to the proceeding. (§ 3365.) The issues thus raised by the petition and answer are directed to be tried by the court or referee. (§ 3367.) Section 3369 provides that judgment shall be entered pursuant to the direction of the court or referee in the decision filed; if in favor of the defendant,, the petition shall be dismissed, with costs to be taxed by the clerk at - the same rates as are allowed, of course, to a defendant prevailing in an action in the Supreme Court, including the allowances for proceedings before and after, notice of trial. If the decision is in favor of the plaintiff, or if no answer has been interposed, and it appears from the petition that he is entitled to the relief demanded, a judgment is entered adjudging condemnation of the real property and appointing commissioners. Section 3372 provides that in all cases where the owner is a resident and not under legal disability to-convey title to real property the plaintiff, before service of his petition and notice, may make a written offer to purchase the property at a specified price, which offer must be filed within the time and as therein provided, and the owner may serve notice in writing of his acceptance of the plaintiff’s offer. Thereupon the plaintiff may, upon filing the petition with proof of the making of the offer and acceptance, enter an order that upon payment of the compensation he may enter into possession of the property, and take and hold it- for the public use therein specified. It then provides as follows: “If the offer is not accepted, and the competid sation awarded by the commissioners does nbt exceed the amount of' the offer with interest from- the time it was made, no costs shall be allowed to either party. If the compensation awarded shall -exceed the amount of the offer with interest from the time it was made, or if no offer was made, the court shall, in the final order, direct that the defendant recover" of the plaintiff .the' costs of the proceeding, to be'taxed by -the clerk at the same-rate-as is allowed, of course,-to the defendant when he is the prevailing party in an action in' the Supreme Court, including the allowances for proceedings before and after notice of trial and -the court may also grant an ■ additional allowance of costs not exceeding five per centum upon-the amount awarded.”- • ■ ■ • .

Then follows-a provision regarding payment to general or special guardians, or eo'mpensátioh. to an attorney appointed to attend to the interests of defendants who have not been' personally served, and concludes with the following provision:' “ If a trial has been had, and- all the issues determined -in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall reco ver of any defendant answering the costs of such trial caused by the -interposition of the unsuccessful defense, to be taxed' by .the clerk at. the same rate as is allowed to the prevailing party for the trial Of an ac.tion in the Supreme Court.”

. As has been stated, the defendants were personally served; they were residents, and an offer was duly made to purchase, which the defendants did- not accept'. They interposed an answer, and were beaten upon the trial of the issues tried'before the court, but' succeeded in obtaining a more favorable-award, before the commissioners' than that offered by the .petitioner.

We think that both parties áre' entitled to costs, the petitioner the costs of the trial of the issues before the court, and the defendant to a full bill of costs for the proceedings before' the commissioners. It seems clear to us', in a case like this where both parties succeed, the petitioner upon the issues raised by the answer, and the defendant upon- the proceedings--before the commissioners, the • two proceedings are to be regarded as separate and independent, as regards the question of costs. Such we think is the- plain reading of the provisions of the statute, and manifestly fair to both parties. .

The final order, so far as it denies costs to the petitioner,-should be reversed, and the petitioner should’be allowed costs of the trial of the issues before' the court, to be taxed at the same rate as allowed to the prevailing party on a trial of an action in the Supreme Court, and the-judgment modified accordingly. The defendant should also recover his costs against the petitioner for the proceedings before the commissioners, to be taxed at the same rate as is allowed, of course, to tlie defendant when be is the prevailing party in an action in the Supreme Court, including the allowances for proceedings before and after. notice of. trial,, and an additional allowance of five per centum upon the-amount of the award, and the clerk should be directed to tax the costs of the respective parties accordingly. Neither party should recover costs upon this appeal against the .other. - .

All concurred, except McLennan, P. J., who dissented.

■ Judgment of condemnation, so far as it denies costs to the petitioner, is. reversed, and. petitioner is allowed costs of trial of the issues raised by the answer, to be taxed at the same rate as allowed to tlie prevailing party in the action in the Supreme Court; that the defendant, recover his costs against the petitioner as upon a trial for the proceedings before the commissioners, including the costs for jh-oceedings before and after notice of trial, together with the additional allowance, and the clerk is. directed to tax the costs of the respective parties accordingly, without, costs of this appeal tó either party.  