
    In the Matter of the Application of John Van Kleeck, Respondent, to Have His Bill and Claim against The City of New York, Appellant, Taxed and Adjusted.
    Third Department,
    June 27, 1912.
    Eminent domain — Ashokan reservoir — payment of expenses of commissioners of appraisal.
    Under section 33, chapter 734 of the Laws of 1905, providing that the necessary traveling expenses and all other expenses in the special proceedings for acquiring lands for the Ashokan reservoir shall be paid by the comptroller of the city of New York after they have been taxed before a justice of .the Supreme Court, the commission should adjust its bills and cause the same to be properly taxed..
    A claim for liveries furnished to a commissioner should not be presented to the city of New York in the first instance.
    Smith, P. J., and Lyon, J., dissented.
    
      Appeal by The City of New York from an order made by a justice of the Supreme Court and entered in the office of the clerk of the county of Ulster on the 15th day of March, 1912; appointing a referee to take evidence and report as to the validity of the claimant’s claim.
    
      Archibald R. Watson, Corporation Counsel [William McM. Speer of counsel], for the appellant.
    
      Augustus H. Van Buren, for the respondent.
   Kellogg, J.:

The moving affidavit shows that commissioners were appointed to assess damages for the appropriation of lands for the Ashokán reservoir, to, furnish the city of New York with an additional water supply; that various commissioners and an expert witness from time to time hired livery horses of the claimant for use with reference to their duties and had not paid therefor, and alleges that the city of New York owes him therefor.

■ Section 32. of chapter 724 of the Laws of 1905 provides: “The fees of the commissioners and the salaries and compensation of their employees, and their necessary traveling expenses, and all other necessary expenses, in and about the special proceedings provided by this act to be had for acquiring title or extinguishing claims for damages to real estate, * * * shall be paid by the comptroller of the city of New York out of the funds hereinafter provided. Such fees and expenses shall not be paid until they have been taxed before a justice of the Supreme Court in the judicial district in which the lands or some part thereof are situated upon eight days’ notice to the corporation counsel'of the city of New York.”

The plaintiff’s bill contains ninety-five items, aggregating $312.' In some cases the number óf the commission is stated for which the alleged services were rendered; in many cases no such statement appears. The affidavit in defense alleges that the expert witness was paid in full for his services and ■ all disbursements made by him, and that if anything remains due from him to the liveryman it is his personal matter. The bill indicates that most of the items were furnished for commissions Nos. 1, 2, 6, 7, 9, 11 and 12. The answering affidavit shows that most of said commissions rendered bills for their services and disbursements, including horse hire and traveling expenses, and have been settled with in full; that there was paid for disbursements and conveyances and horse hire as follows: To commission No. 1 the sum of $700; to commission No. 2 the sum of $500; to commission No. 6 more than $500; to commission No. 7, $500; to commission No. 9, $900; to commission No. 11 more than $1,400, and to commission No. 12 more than $2,000; that in such bills are specific charges for traveling, livery transportation and conveyances, which have been duly taxed and paid; that in several of the cases, by agreement with the commission, the payments were in full for all claims, whether for services or disbursements.

Much trouble has arisen in adjusting the disbursements of the various commissions, and the question of automobile hire and other livery bills of the commissions have been before the court and the bills materially reduced. If every person who furnished anything to one of these commissions may make a separate application and have his bill taxed against the city, much confusion will arise and it will cost the city large sums of money to determine whether the bills are just and proper; but if each commissioner is allowed to tax his own disbursements, pay the same and be reimbursed for them, the process is simple and in each case a certificate of the commissioner is furnished that the bill is proper and for the benefit of the city. It is almost impossible for the city to defend against this bill in its present form, and it may be difficult to show whether certain items embraced in the bills of' commissioners are duplicated in the claimant’s bill. The city has the right to insist that the most orderly way be adopted, and that an obligation against the city cannot be created by every one connected with the condemnation proceedings.

If the claimant has furnished liveries to a commissioner and has not been paid, evidently the commissioner ordering the services is responsible for the same, and if the commissioner has not already been paid for it, he may, if it is a proper disbursement, tax his bill against the city.

We only determine that this motion is not the orderly and proper way for the taxation of the disbursements of the commissioners, and that the commission should adjust its bills and cause the same to be properly taxed.

The order should, therefore, be reversed and the motion denied.

All concurred, except Smith, P. J., and Lyon, J., dissenting.

Order reversed and motion denied, without costs.  