
    In the Matter of the Application of The Board of Street Opening and Improvement of the City of New York, for and on Behalf of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title wherever the same has not been Heretofore Acquired, to Edgecombe Road (Although not yet named by Proper Authority), from One Hundred and Fifty-fifth Street to a Point in the Easterly Line of Tenth Avenue Opposite One Hundred and Seventy-fifth Street, in the Twelfth Ward of the City of New York. The City of New York Appellant; Edward F. O’Dwyer and Others, Commissioners of Estimate and Assessment, Respondents.
    
      Mew York city—additional allowance to commissioners of estimate and assessment.
    
    Under section 998 of the Greater New York charter (Chap. 378 of the Laws of 1897), authorizing an additional allowance to commissioners of estimate and assessment in cases of “an unusually difficult or extraordinary character,” it is not sufficient to warrant the granting of the additional allowance that the work of the commissioners was important and laborious and that the application ofthe rule; by which they were to be guided in its execution, was not free from difficulty; the case must be an extreme one and markedly out of the common.
    Van Brunt, P. J., dissented.
    • Appeal by The City of New York, the successor of The- Mayor,. Aldermen and Commonalty of the City of New York, from an order of the Supreme Court,, made at the New York Special Term and entered in the office of the clerk of the county of New York on the. 12th day of April, 1898, granting an extra and additional allowance to the commissioners of estimate and assessment appointed in the proceeding.
    
      Theodore Coninoly, for the appellant.
    
      Isaac Fromme, for the respondents.
   Barrett, J.:

The statutory fees of these three commissioners were taxed at something over $5,000. By the order appealed from they were allowed additional compensation to the amount of $22,500. The authority for such additional .allowances is found in section 998 of the charter (Laws of 1897, chap. 378).-. This section provides that the commissioners of estimate and assessment shall receive six dollars each for every day upon which they shall meet and he actually and necessarily employed ih their duties. It further provides that “in any proceeding of an unusually difficult or extraordinary character, the said court may, upon taxing said costs or expenses, make-such additional allowances to the said commissioners as may to it appéar just and equitable upon such proof as may be submitted of the nature and extent of the services rendered by said commissioners.” The claim made by the present commissioners is that this proceed-, ing was of “an unusually difficult and extraordinary character” . within the contemplation of this statute. This does not seem to be disputed by the learned corporation counsel. He objects, however, to the amount of these extra allowances, claiming that they aré not warranted by the difficult or extraordinary nature of the services rendered,. Jn our judgment, the error in this order lies deeper than the objection to the sums allowed. It goes'to the root of the matter, and results from an inaccurate construction of the statute. The authority to grant such additional allowances is not given to supplement the statutory fees in ordinary cases, however laborious or important the services of the commissioners may have been. For all such services they are limited to the fixed per diem compensation, just as a referee is in the trial of an action.' Indeed, the law prior to the enactment of the present charter fixed the per diem compensation of these commissioners in express analogy to that of referees. (Laws of 1895, chap. 449, § 4.) It is only in a proceeding of an unusually difficult or .extraordinary character, that the court is authorized to add to these statutory fees. The present proceeding is clearly not within this language. . Some of the questions presented are said to have been difficult. The difficulty, howeyer, consisted not in the governing rule, but in the application of that rule. The rule itself had been settled for the commissioners by the court before they were called upon to act. (Matter of One Hundred and Seventy-third Street, 18 Hun, 487.) It may be conceded that the application of the rule laid down by the case cited called for considerable thought and reflection. It certainly required good sense and judgment. But there is nothing extraordinary about that. It is so in nearly all cases. The commissioners. are appointed because they are supposed to be competent to perform the important duties imposed upon them. These duties, even in ordinary cases, are by no means trivial or inconsiderable. Nor are they merely ministerial. They are in a certain sense judicial. They demand intelligence, aided by experience. It is for the bringing into play of these qualities, and for the adequate performance of practically judicial functions,. that the commissioners are allowed what the lawmakers deemed a reasonable per diem compensation. If the respondents here are right in their construction of the act in question, this exclusive per diem compensation would soon be limited to but the simplest proceedings. The regular fees would in this view play but a subsidiary part in the awarding of compensation. We think that the intention was quite otherwise; that the statutory fees were deemed to be sufficient compensation, however laborious and important the services, in all proceedings save those markedly out of the common. The authority to make such additional allowance—apparently first granted in the act of 1895, already cited — was a radical departure from the general policy of the law in such eases. It was plainly granted to cover extreme cases, and only such. The language could not well have been better adapted to indicate such purpose. It is extreme language. The proceeding must not only be difficult, but umtsually difficult or extraordinary. We have perused the affidavits of these commissioners with care, and, with every desire to treat them fairly and considerately, we are unable, upon .the facts therein disclosed, to find that the present proceeding was, within the meaning of the statute, of an unusually difficult or extraordinary character. It ivas undoubt-' edly important and laborious. We may even add that the application of the, rule laid down for their guidance was not altogether free from difficulty. It undoubtedly called, as we have already suggested, for intelligence and good judgment. But whatever difficulty there was, was but part of the ordinary lot of commissioners in the general run of cases. It certainly was not the unusual difficulty contemplated by the statute.

It follows that a case for the exercise of judicial discretion as. to an award of additional compensation beyond the statutory fees was not made out, and, therefore, the order appealed from should be reversed.

Rumsey, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Order reversed.  