
    In the Matter of the Petition of New York Municipal Railway Corporation and New York Consolidated Railroad Company, Appellants, Relative to Acquiring Title, etc., on Fulton Street, in the Borough of Brooklyn, etc. Jacob Kaplan and Rose Kaplan, Respondents.
    Second Department,
    December 30, 1916.
    Eminent domain — condemnation proceedings — costs of petitioner after unsuccessful defense.
    Where, in condemnation proceedings the defendants by answer deny the petitioners’ legal right to maintain the proceeding and a referee determines the issue in favor of the petitioners, they are not entitled to tax costs until the entry of the order finally determining the proceeding.
    Although section 3369 of the Code of Civil Procedure contains no express provision for costs to a successful petitioner and deals only with the costs of a defendant who is successful in obtaining a dismissal of the petition, the successful petitioner may tax his costs under section 3372 of the Code of Civil Procedure on the entry of the final order.
    Jenks, P. J., dissented.
    Appeal by the petitioners, New York Municipal Railway Corporation and another, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 23d day of May, 1916, upon the report of a referee appointed to hear and determine the issues, as fails to adjudge that the petitioners recover costs against the defendants Jacob Kaplan and Rose Kaplan. Also an appeal is taken by the petitioners from an order entered in said clerk’s office on the 19th day of June, 1916, denying their right to tax costs.
    
      Charles L. Woody [George D. Yeomans with him on the brief], for the appellants.
    
      Arnon L. Squiers [Joseph S. Johnston with him on the brief], for the respondents Jacob Kaplan and Rose Kaplan.
   Carr, J.:

The petitioners, appellants, brought this proceeding to acquire' an easement in real property for railroad purposes under the provisions of the Condemnation Law. (See Code Civ. Proc. chap. 23, tit. 1.) The defendants, respondents, put in an answer raising an issue as to the petitioners’ legal right to maintain the proceeding. The issues were sent to a referee to hear and determine. The referee reported in favor of the petitioners. Section 3369 of the Code of Civil Procedure regulates the form of judgment to be entered upon the decision. It provides, among other things, that, if the decision he in favor of the defendant, the judgment entered thereon shall provide for costs in favor of the defendant, to be taxed by the clerk, and if the decision be in favor of the petitioner, it further provides for an adjudication that the petitioner is entitled to take and hold the property in question; but it contains no provision for costs to the petitioner. It is apparent that, if the decision be in favor of the defendant, the judgment entered thereon ends the proceeding, and that is why the amount of the defendant’s costs should be then ascertained. If, however, the decision be in favor of the petitioner, the proceeding still continues, commissioners are appointed to assess the damages, and a hearing and determination as to this question follows. The proceeding then ends in a final order, provided and regulated by section 3372 of the Code of Civil Procedure. That section, among other things, provides as follows: “ If a trial has been had, and all the issues determined in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering the costs of such trial caused by the interposition of the unsuccessful defense, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the Supreme Court. ” It seems to be the purpose of section 3372 that these costs, when taxed, should be entered in the final order. The petitioners herein applied for an order directing the taxation of their costs upon the trial. The learned Special Term denied the motion, which, however, was too broad, as it sought to have the costs taxed and entered in the judgment, whose form is regulated by section 3369 of the Code of Civil Procedure, as aforesaid.

The order appealed from should be modified in such manner as to provide for the taxation of the petitioners’ costs on the entry of the final order, and as so modified should be affirmed, without costs.

Thomas, Stapleton and Putnam, JJ., concurred; Jenks, P. J., dissented.

Order modified in such manner as to provide for the taxation of the petitioners’ costs on the entry of the final order, and as so modified affirmed, without costs.  