
    In the Matter of the Application of The Lake Shore & Michigan Southern Railway Company to Appraise Certain Lands of Frederick Brinkman et al.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    2. Eminent domain—Title 1, chap. 33, Code Crv. Pro.—Power of court to grant additional allowance—Trial fee.
    In condemnation proceedings instituted under title 1 of chapter 33 of the
    
      Code, the defendants interposed an answer, but, by stipulation, it was withdrawn. On application at special term for confirmation of the commissioner’s report, delendants asked for costs as in an action where a trial had been had, and for an additional allowance. It was conceded that no offer' had been made by plaintiff to purchase the property at a specified price. The court denied defendanis’ application, on the ground that it had not the power to grant it; allowing him twenty-five dollars, defendants’ cost of course before trial. Held, that the court has power to grant an additional allowance of costs where no offer to purchase has been made, even where no answer has been interposed, and the proceeding was not difficult or extraordinary, but that the hearing was not a trial, and that defendant was not entitled to a trial fee.
    3. Same.
    In such proceeding the amount of costs to be recovered is not controlled by subdivision 3 of § 3251 of the Code, for the hearing before the commissioners is not in any sense a motion or a reference, nor is it controlled by § 1015, for it is not the taking of an account.
    Appeal from so much of the order of the Erie special term, confirming the report of commissioners, as denies the application for .a direction that the defendants recover of plaintiff the costs of the proceedings as in an action where a trial has been had, and as •denies the application of defendants for an additional allowance of •costs.
    
      Norris Morey, for app’lts; Daniel H. McMillan, for resp’t.
   Lewis, J.

This is a proceeding instituted under title 1 of chapter 23 of the Code of Civil Procedure, entitled “ Proceedings for the Condemnation of Real Property. ”

On presentation of the petition, the defendant Brinkman interposed an answer, but by stipulation of parties the answer was withdrawn and the proceeding thereafter was continued practically as if no answer had been interposed. Mo testimony was given before the commissioners nor considered by them except the question as to the value of the premises to be acquired, and they thereafter made their report that there should be paid to the defendants for the property condemned the sum of $550. On the application at special term for confirmation of the commissioners’ report, the defendants appeared and made no opposition to the confirmation, but asked that the order direct that defendants recover of the plaintiff costs of the proceeding as in an action where "trial has been had, and for an additional allowance of costs. It was conceded upon the hearing of the motion that no offer had been made by the plaintiff to purchase the property at a specified price. The report was confirmed. The defendants’ application was denied for the alleged reason that the court had not the power to grant it. There was allowed by the order, to the defendant Brinkman, twenty-five dollars together with disbursements.

Title 1 of chapter 23 of the Code of Civil Procedure was passed in 1890. It provides a new and complete system of practice for the condemnation of real property, which resembles in its main features the practice in ordinary actions. The proceeding is instituted by the service of a petition upon the owner of the land .sought to be condemned in the same manner as an ordinary summons is served, with a notice of a time and place that it will be presented to a special term of the supreme court. On presentation of the^ petition, the owner may appear and interpose art 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. The issues thus'raised are tried by the court, or referred to a referee to hear and determine. Exceptions may be filed and reviewed in the same manner as in ordinary actions. If judgment, is in favor of the defendant, the petition will be dismissed with costs, to be taxed by the clerk, at the same rates as áre 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 the petitioner is entitled to the relief demanded, judgment, shall be entered adjudging that the condemnation of the real property described is necessary for public use, and commissioners-are thereupon appointed. Section 3372 makes provision for cases-where answers are not interposed. It provides that the petitioner may, before he serves his petition and notice, make a written offer to the owner to purchase the property at a specified price, and the owner may, at the time of the presentation of the petition, or at any other time previously, give written notice of his-acceptance of the offer, and upon filing the petition, with proof of the offer and its acceptance, an order may be entered that upon payment of the compensation agreed upon the petitioner may enter into possession of the property and hold the same for public use.

If the offer is not accepted, and the compensation awarded by the commissioners does not 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 be 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.

The legislature obviously intended by this section to provide-indemnity to an owner who has been subjected to the expense of an investigation in case of the failure of the petitioner to make a. preliminary offer for the property. The steps in the proceeding are similar to those for the commencement and prosecution of an ordinary action. The petition is served in place of a summons. The owner is required to appear and look after the appointment of the commissioners. He is subjected to the trouble and expense of preparing for the hearing by procuring witnesses.. There is the same necessity for counsel as in oruinary actions. The hearing in such cases frequently consumes considerable time. The questions involved are sometimes intricate, especially in cases where the land taken forms a part of a larger tract owned by the defendant, and the question, therefore, of damages to the remaining land is involved. The provision as to an allowance of additiirnal costs does not depend, as in § 3253, upon an answer having ■been interposed, or upon the proceeding being difficult and extra■ordinary. No such condition is contained in the section, but the court is given the discretion to grant an additional allowance of costs when no offer has been made, as in this case. This provision was undoubtedly inserted with a view of giving the court the discretion of granting an additional allowance of costs for the purpose of compensating the owner in a proper case for the expense •he may have been subjected to in summoning witnesses and attending the hearing before the commissioners with his counsel.

In ordinary real estate purchases, the would-be purchaser negotiates with the owner as to the price to be paid for the land. When, lands are to be condemned for public use, the petitioner is required by § 3372 to enter into negotiations with the owner, and make a reasonable offer for the property, or incur the liability ■to pay costs to the owner. The amount of costs to be recovered is not controlled by subdivision 3 of § 3251 of the Code, for the hearing before the commissioners is not in any sense a motion or a reference. Neither is it controlled by § 1015, for it is not the taking of an account. Defendant was clearly entitled to the items Of ten and fifteen dollars allowed him for proceedings before and after notice of trial. They are expressly mentioned as items of ■costs to which he was entitled. In ■ the memorandum of decision of the court at special term,- printed in the case, the learned justice states: “ I think this is a proper case for allowance of costs, including trial fee as in an action, and for extra allowance, if the court had the power to grant it.”

We think the court had the power to grant an extra allowance ■of costs, and should have allowed to the defendant as an additional allowance of costs the sum of $27.50, being five per centum upon the amount awarded.

Whether the defendant is entitled to a trial fee is a more difficult question. There was no issue of fact or of law in the proceeding. Sections 3367 and 3372 speak only of trials in connection with issues raised by an answer. Strictly speaking, the hearing before the commissioners is not a trial. It is more like an assessment of damages in an ordinary action where no answer has been interposed. While the question is not free from doubt, we are inclined to think that the appellants was not entitled to a 'trial fee. The portion of the order appealed from should be modified so as to give the defendants, in addition to the twenty-jive dollars and the disbursements, the sum of $27.50 as an additional allowance of costs, and the defendants should recover of the plaintiff costs of the appeal.

Dwight, P. J., and Macomber, J., concur.  