
    In the Matter of the Proceedings to Extend South Market Street in the Village of Johnstown through Lands of Mortimer Wade and Others.
    
      Condemnation proceedings for street purposes — a special pi'oceeding — costs of appeal therein under § 3240 of the Code of Civil Procedure— costs allowed by chapter 270 of 1854.
    An application for an order appointing commissioners to appraise the damages caused by the extension of a street is a special proceeding, from the order made in which an appeal may be taken.
    Under the provisions of section 3240 of the Code of Civil Procedure, costs upon an appeal to a court of record in a special proceeding, where they are not specially regulated by the Code, may be awarded to any party in the discretion of the court, at rates allowed for similar services in an action brought in the same court, or on an appeal taken in like manner from a judgment in the same court. A proceeding taken under the General Railroad Act is a special proceeding, and under the provisions of chapter 270 of the Laws of 1854, costs should be allowed in such proceeding the same as in a civil action.
    Motion to modify and correct the entry in the clerk’s minutes of a decision of an appeal in the above-entitled proceeding.
    
      Edwin Baylies, for the appellant Younglove.
    
      Andrew J. Nellis, for the Tillage of Johnstown.
    
      Philip Kech, for "Wade and others.
    
      Henry W. Thome, in person.
   Herrick, J.:

Tliis is a motion to modify and correct a memorandum of the decision of the appeal in the above-entitled matter, entered upon the clerk’s minutes, so as to award to the appellants costs at the same rate, as on appeal to this court in the final judgiiient in the action.

The appeal in this case was taken from an order of the Special Term appointing commissioners to ascertain and assess the damages claimed by the landowners in proceedings - for the extension of South Market street in the village of Johnstown.

The proceeding to extend South Market street was an exercise of the right of eminent domain; it was a condemnation of land for public purposes, and it has been repeatedly held that proceedings for railway purposes were special proceedings; that an order appointing commissioners to appraise damages was a special piuceeding from which an appeal might be taken as such. (R. & S. R. R. Co. v. Davis, 43 N. Y. 137; Matter of Fowler, 53 id. 60.)

So, also, proceedings to take land for public streets, or for the purpose of building a sewer, have been held special proceedings. (Matter of One Hundred and Sixty-third Street, 61 Hun, 365; Matter of Wells Ave. Sewer, 46 id. 534.)

By section 3240 of the Code of Civil Procedure, it is provided that costs upon an appeal in a special proceeding taken to a court of record, where they are not specially regulated by the Code, may be awarded to any party in the discretion of the court, at rates allowed for similar services in an action brought in the same court, or on an appeal taken from a judgment in the same court in a like manner.

By chapter 270 of the Laws of 1854, it was provided that “ in special proceedings and on appeals therefrom costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions.”

And it was held that a proceeding under the General Railroad Act was a special proceeding, and that under such statute costs should be allowed in such proceeding the same as in a civil action. (R. &. S. R. R. Co. v. Davis, 55 N. Y. 145.)

In the Matter of Holden (126 N. Y. 589) it is held that section 3240 embodies that portion of chapter 270 of the Laws of 1854 above quoted, and the court approves of the decision of the Davis case. And in The Matter of Wells Avenue Sewer (supra), a proceeding to procure an easement in lands to construct a sewer, it was held that the proceeding was a special one under section 3240 of the Code.

The motion should be granted.

Mayham, P. J., and Putnam, J., concurred.

Motion to amend order so as to award appellant costs at the same rate as upon an appeal from a final judgment in an action granted.  