
    In the Matter of the Application of Seth Low and Others, Respondents, Constituting the Board of Rapid Transit Railroad Commissioners of the City of New York, etc., for the Appointment of Commissioners of Appraisal, etc., Relative to Acquiring a Pepetual Underground Right, etc. under Joralemon Street, etc. Francis L. Pruyn, Applicant, Appellant.
    Second Department,
    December 30, 1915.
    Municipal corporations — city of Mew York — payment and taxation of expenses under section 68 of the Rapid Transit Act —judicial power to tax fees and expenses — evidence of charge by engineer for examination of buildings.
    Under section 62 of the Rapid Transit Act, providing for the payment by the comptroller of counsel fees and reasonable expenses incurred by the corporation counsel after “they have been taxed before a justice of the Supreme Court,” taxation means an ascertainment and adjustment of the charge.
    Judicial power to tax legal expenses may be availed of even without actual evidence of unreasonableness of the items charged and is not absolutely dependent on what testimony may be produced.
    
      Evidence as to charges by a professional engineer for the examination of buildings and for his testimony as certified by the corporation counsel, examined, and held, that the reduction thereof by the Special Term should not be held arbitrary or unreasonable, especially since the testimony in support of the charge is merely opinion evidence, and the number of days actually spent is not shown.
    Appeal by Francis L. Pruyn from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of June, 1915, denying his motion to confirm the report of an official referee.
    
      Frank W. Holmes, for the appellant.
    
      Terence Farley [Charles J. Nehrbas with him on the brief], for the respondents.
   Putnam, J.:

Section 62 of the Rapid Transit Act has a proviso for the comptroller’s payment of counsel fees and reasonable expenses incurred by the corporation counsel. “But 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 said city is situated. ”

Taxation here means an ascertainment and adjustment of a charge. In old English practice, when applied to damages, taxation was cutting down damages by a judge where the jurors had given an excess; so “to tax,” signifies to adjust, adapt, or proportion. (Bouvier’s Dictionary, “Tax.”) It is in this earlier sense that judges are required to pass upon and allow or reduce charges and fees of a coroner’s inquest (Matter of Toepel, 139 Mich. 85), and to tax accounts of a district attorney (Supervisors of Onondaga v. Briggs, 2 Den. 26).

Did the court at Special Term err in refusing to tax the full account of Mr. Pruyn a professional engineer, for examination of buildings on Joralemon street, and for his testimony on three occasions, amounting to $3,416.40, as certified by the corporation counsel ?

It appears that the city had retained Mr. Moss, an expert, at a price of $90 for each house, and then at same terms engaged Mr. Pruyn to confirm Mr. Moss. Mr. Pruyn later reduced this charge to $80 for each house. So that for these experts the city became involved at the rate of $170 a house. An element of such a charge, and one most essential, is wholly omitted. How many days Mr. Pruyn’s survey took is not shown.

This judicial power to tax legal expenses, however (such a needed curb on city outlays), may be availed of, even without actual evidence of unreasonableness in the items charged. Testimony in support of the charge, at best, is but opinion evidence, and, therefore, not controlling. If it appeared that the examination of these houses consisted largely in noting in repetition the cracks, settlement and subsidence shown in one house following another, all presenting like problems, the justice, I think, became bound to use this statutory power to moderate the charge of eighty dollars a house, instead of approving en bloc a multiplication of thirty-four such items. Otherwise, this power of taxation would be stopped whenever counter evidence was withheld. Even a jury is not bound by professional estimates of value of legal services, though standing uncontradicted. (Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 124 App. Div. 896; 196 N. Y. 502; Steele v. Hammond, 136 App. Div. 667.) But the judicial power to tax fees and expenses is not absolutely dependent on what testimony may chance to be produced. The Legislature have conferred an ancient authority which is broader than merely to hear and to follow evidence; for the justice passes not only on charges in the abstract, but is to say how far a particular charge shall be placed on the city, as' incident to a rapid transit proceeding. In the absence of the number of days actually taken in this survey of the thirty-four houses, and the time for the larger buildings, the taxation at Special Term at fifty dollars for each house, with the reduction as to Temple Bar and Packer Institute, should not be held arbitrary or unreasonable.

The order should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Carr, Stapleton and Mills, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
       The order appealed from is entitled at Special Term, although the statute then in force provided for taxation before a justice of the Supreme Court. However, this order by the court instead of by a judge at chambers was proper, the proceeding not being in the First Judicial Department. (Code Civ. Proc. § 768.) The amendment of the Rapid Transit Act (Laws of 1915, chap. 604, § 50) passed May 11, 1915, to take effect September 1, 1915, changed this provision to read as follows: “No fees or expenses incurred by said city or said counsel to the corporation or other principal legal adviser in connection with any proceeding instituted under this act shall be paid until they shall have been taxed bjT the court upon five days’ notice to the counsel to the corporation or other principal legal adviser and upon proof of the nature and extent of the services rendered and disbursements charged. No unnecessary costs or charges shall be allowed. All costs, fees, expenses or disbursements to be taxed shall be stated in detail in the bill of costs and shall be accompanied by such proof of the reasonableness and necessity thereof as is now required by law and the practice of the court upon taxation of costs and disbursements in other special proceedings or actions.” Although this took effect pending this appeal, and did not strictly affect the merits, it indicates the legislative purpose to have such charges reviewed and scrutinized.— [Note by the Court.
     