
    Matter of the Application of the Board of Water Supply of the City of New York to Acquire Real Estate, etc.
    (Supreme Court, Westchester Special Term,
    January, 1912.)
    Eminent domain—Acquiring separate rights or interests in lands—■ Condemnation proceedings —.Property subject to appropriation.
    The “subject matter involved” upon the institution of a proceeding by the city of New York under the statute to acquire land for a water supply is the market value of the property at the time the title is vested in the city, and the five per cent, additional allowance for costs within the $2,000 limit under sections 3253, 3264 of the Code of Civil Procedure must be calculated upon the award made to the owner without reference to interest payable thereon under the statute.
    ‘ Motion for an additional allowance.
    Lindsay, Kalish & Palmer, for claimant.
    Archibald It. Watson (Corporation Counsel), for petitioner.
   Tompkins, J.

I am asked on this application, which is made on behalf of the owner to whom an award of $20,350 was made, for an additional allowance of five per cent, upon said award, and also upon the interest upon the said award, which, under the statute, the owner will he entitled to receive from the date of the vesting of the title in the city; and this application raises for the first time the question whether the interest may be added to the award made by the commissioners for the purpose of the making of an additional allowance. The statute under which this proceeding was brought provided that the court may make allowances for counsel fees, and that such allowances shall in no case exceed the limits prescribed by section 3253 of the Code of Civil Procedure,” and that section and the succeeding section, which must be read with it, limit such an allowance to the sum of $2,000, and shall be upon the value of the subject-matter involved.” The subject-matter involved,” when the commissioners were appointed and began their work, was the market value of the property, at the time the property was taken and the title vested in the petitioner by the filing of the oaths of office of the commissioners. The statute provides that the owner shall receive, in addition to the award that the commissioners may make, interest thereon, from, the date that the title vests in the petitioner. Presumably, that is to compensate the owner for the loss of his property between the time that it is taken from him and the date of the payment of the award; but the payment of that interest does not alter the fact that “ the amount involved ” at the beginning of the proceeding is the market value of the property at the time the title is vested in the petitioner.

My conclusion is that the five per cent, allowance must be calculated upon the award made by the commissioners and confirmed by the court, without reference to the interest that may be payable thereon under the statute. I am, therefore, making an allowance of five per cent, upon the award of $20,350, and will also allow, for disbursements and expenses, the amount that I understand has been agreed upon by counsel.

Ordered accordingly.  