
    BROOKLYN UNION ELEVATED R. CO. v. CASE.
    (Supreme Court, Appellate Division, Second Department.
    April 13, 1903.)
    1. Eminent Domain—Damages—Costs.
    Code Civ. Proc. § 3372 (Condemnation Law), provides that, if the compensation awarded by the commissioner exceeds plaintiff’s offer, the court shall, in the final order, direct that defendant recover of plaintiff costs of the proceeding as allowed in the Supreme Court, including allowances for proceedings “before and after notice of trial.” Held, that the trial spoken of is the one before the appointment of commissioners, and a landowner awarded more than plaintiff’s offer is not entitled to costs in the proceedings before the commissioner, as though a trial had been had.
    Appeal from Special Term, Kings County.
    Petition of the Brooklyn Union Elevated Railroad Company against Theodore B. Case to acquire title to real estate. Appeal by plaintiff from an order taxing certain costs.
    Reversed.
    Argued before GOODRICH, P. J„ and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.
    Alexander S. Lyman, for appellant.
    Cyrus V. Washburn, for respondent.
   PER CURIAM.

If the question presented by this appeal were a new one, it might well be held that under section 3372 of the Code of Civil Procedure a landowner who is awarded for his property more chan was offered to him by the party seeking to condemn it is entitled to recover costs, as though a trial had been had. But a different view has been so often taken by courts of concurrent jurisdiction that we deem a contrary rule to be established by authority.

In Manhattan Railway Co. v. Kent, 8o Hun, 559, 30 N. Y. Supp. 959, affirmed in 145 N. Y. 595, 40 N. E. 164, the General Term of the First Department said:

“The proceedings before the condemnation commissioners were not the trial contemplated by the statute. Such proceedings were a mere assessment of damages. The trial spoken of in the statute is that which takes place preliminary to the appointment of commissioners.”

In City of Johnstown v. Frederick, 35 App. Div. 44, 54 N. Y. Supp. 412, the order confirming the report of the commissioners provided that defendants should recover of the plaintiff costs to be taxed pursuant to section 3372 of the Code of Civil Procedure, “as if the compensation awarded had exceeded the amount of the offer, with interest, and an additional allowance of costs not exceeding two per cent, upon the amount awarded”; and the question presented for determination to the Appellate Division, as stated by Mr. Justice Putnam, was, “What costs the defendants are entitled to under the provisions of the section of the Code of Civil Procedure referred to ?” In answer to this question the court held (following Manhattan Railway Co. v. Kent, supra) that the defendants were not entitled to any trial fee or costs before or after notice of trial, the proceedings before the commissioners being merely an assessment of damages.

To the same effect is the later decision of the Appellate Division in the same department in Village of St. Johnsville v. Cronk, 55 App. Div. 633, 67 N. Y. Supp. 419, where a majority of the court refused to adopt a contrary construction of the statute ably presented in the dissenting opinion of Kellogg, J. We conclude that the order appealed from should be reversed.

Order reversed, and costs taxed in accordance with opinion per curiam. Ail concur.  