
    (52 Misc. Rep. 602)
    In re TWENTY-SEVENTH AND TWENTY-EIGHTH STREETS, AND NINTH AND TENTH AVENUES, IN THE CITY OF NEW YORK.
    (Supreme Court, Special Term, New York- County.
    February 18, 1907.)
    Eminent Domain — Condemnation Proceedings — Commissionebs — Allowances.
    Chapter 658, p. 1716, Laws 1906, which prevents the granting of extra allowances to commissioners in condemnation proceedings by section 998 of Greater New York Charter (Laws 1901, p. 425, c. 466, as amended by chapter 736, p. 1885, Laws 1904), and which provides that its provisions shall apply to all pending proceedings where the duty or duties imposed by the act have not been performed, does not apply to proceedings pending at the time of its passage, in which steps have actually been taken by the commissioners; and hence, where the commissioners qualified in July, 1905, they were entitled to an extra allowance, where such allowance was reasonable.
    Motion by commissioners, in proceedings to acquire title to certain lands lying between Twenty-Seventh and Twenty-Eighth streets and Ninth and Tenth avenues in the city of New York for park purposes, for additional allowance under section 998 of Greater New York Charter (Laws 1901, p. 425, c. 466). Granted.
    Frederick St. John, for the motion.
    William B. Ellison, Corp. Counsel, opposed.
   GIEGERICH, J.

Under section 998 of the Greater New York Charter (Laws 1901, p. 425, c. 466), as amended by chapter 736 of the Laws of 1904 (Laws 1904, p. 1885), the court was empowered, in any proceedings for the acquisition of property for any public purpose in the city of New York “which is of a difficult or unusual character, * * * to make such additional allowances to any or all of said commissioners as may to it appear just and equitable, * * * such extra allowances not, however, in any instance to exceed the aggregate per diem compensation hereinabove provided for.” Such provisions, however, were omitted from the enactment of 1906 (chapter 658, p. 1708) amending section 998; but section 33 thereof provides that “the provisions of this title shall apply to all pending proceedings where the duty or duties herein or heretofore imposed or act or acts heretofore required to be done have not been performed.” Laws 1906, p. 1716. Mr. Justice Dowling, in Re City of N. Y. (West 20th St., N. R.) 102 N. Y. Supp. 836, passing upon an application for additional allowances to commissioners in similar proceedings instituted in August, 1904, held that the act of 1906 “had and has no application to proceedings pending at the time of its passage in which any steps had actually been taken by commissioners.” It is stated in the brief of the corporation counsel that no appeal was taken from such decision and that since its rendition several applications have been made by commissioners for an extra allowance. Applying the principle of the decision just cited to the present case in which the commissioners qualified on July 18, 1905, it is clear that the application of the commissioners for additional allowances may be entertained.

The city does not oppose the granting of a moderate allowance. The proceeding was an important one. The commissioners did not ask for any per diem allowance for any days upon which there were adjournments and no testimony was taken nor for the various views of the property. Therefore, in view of the extent and character of the work involved and the fact that the aggregate compensation of all the commissioners, including the extra compensation proposed, will be less ' than 1 per cent, of the value of the property, I think the moderate allowances asked for should be granted.  