
    The New York, Ontario & Western R. Co., Plaintiff, v. Wilber E. McBride, et al., Defendants.
    (Supreme Court, Orange Special Term,
    December, 1904.)
    Costs in proceedings to condemn lands.
    The provisions of sections 3369 and 3372 of the. Code of Civil Procedure, allowing costs of trial in proceedings to condemn lands, refer to the trial of issues raised by the answer to the petition which is the only “ trial ” in such proceedings. When judgment is given against defendant, on such issues, plaintiff is entitled to costs before and hfter notice of trial and to a trial fee.
    But section 3372 of the Code of Civil Procedure also provides for costs upon the hearing before commissioners if no offer be made by the plaintiff, or if, in the case of an offer, the recovery be larger than such offer; hence, when no offer is made by plaintiff, defendant is entitled to costs before and after notice of trial and to a trial fee on a hearing before commissioners.
    Proceedings to acquire title to real estate. Motion to confirm report of commissioners.
    Thomas Watts for plaintiff.
    Wilber E. McBride for defendants.
   Gaynor, J.:

In a proceeding for the condemnation of real property, if a defendant interpose an answer to the petition (Code Civ. Pro. § 3365) a trial of the issues thus raised must be had. If judgment be given the answering defendant thereon, he is entitled to costs against the plaintiff, i. e., costs before and after notice of trial and a trial fee (§ 3369). If judgment of condemnation be given, the plaintiff is entitled to like costs against the answering defendant (§ 3372, last clause).

The foregoing provisions relate to the trial ” only, i. e., the trial of the issue raised by an answer to the petition. That is the only trial ” that is had in a condemnation proceeding. The word does not relate to or designate the hearing before the commissioners at all.

But costs are also allowed upon the hearing before the commissioners. If no offer has been made by the plaintiff, the defendant recovers costs without regard to the amount of the award. If such an offer has been made, he recovers costs only if the award be larger than the offer; and the costs allowed are costs before and after notice of trial and a trial fee (§ 3372).

Judgment having been given against the defendants on trial of the issue raised by their answer, the plaintiff is entitled to trial costs, and no offer having been made by the plaintiff, the defendants are entitled to costs upon the hearing before the commissioners.

Ordered accordingly.  