
    Matter of the Application of The City of Brooklyn to Acquire the Property and Franchises of The Long Island Water Supply Company.
    (Supreme Court
    Kings Special Term,
    January, 1895.)
    The provisions of section 8373 of the Code of Civil Procedure, that the court may, in condemnation proceedings, grant the property owner an extra allowance not exceeding five per cent upon the amount of the award, apply to proceedings brought under a special act of the legislature authorizing a municipality to acquire, by eminent domain^ the property and franchises of a water company.
    The extra allowance in condemnation proceedings under the provisions of section 3373 is not limited to the sum of §3,000 provided for by section 3354.
    Motion for an extra allowance in condemnation proceedings. The property and franchises of the Long Island Water Supply Company were taken by the city of Brooklyn in condemnation proceedings authorized by special act of the legislature. The commissioners of appraisal made an award to-said company of $570,000, which upon appeal was finally confirmed by the Court of Appeals (143 N. Y. 596). The Long Island Water Supply Company now moves for an extra allowance as provided for in section 3372 of the Code (Condemnation Law), setting forth in support thereof the fact that no-offer had been made by the city to purchase the property taken. The city of Brooklyn opposes the motion upon the ground that no allowance could be granted in a special proceeding, and, as this proceeding was not brought under the General Condemnation Law, that the provisions thereof as to-allowances do not apply.
    
      
      Thomas E. Pearsall, for the Long Island Water Supply Company, in support of the motion.
    
      A. G. McDonald, Corporation Cownsel, for the City of Brooklyn, opposed.
   Cullen, J.

There can be no question that an allowance should be made to the defendant for defending the proceedings to acquire its property, provided the court has power to make such an allowance. I think that the court has the power. Under section 3240 of the Code, costs 'in a special proceeding, where they are not specially regulated, may be allowed to any party at the rates allowed for similar proceedings in an action. In Rensselaer & Saratoga R. R. Co. v. Davis, 55 N. Y. 147, it was held that the right to grant extra allowances was confined solely to actions, and could not be granted in special proceedings. In Matter of Holden, 126 N. Y. 589, that doctrine has been reiterated emphatically. But since the time when the two decisions cited were made the Code has been altered by adding thereto the chapter called the Condemnation Law. By this addition, section 3372, the court is expressly authorized to grant the property owner an additional allowance not exceeding five per cent on the amount awarded. This change in the law has, in my judgment, abrogated the effect of these decisions, so far as it” relates to proceedings to condemn land, even as to those which are not taken under the particular provision of the law cited. The Condemnation Law is general. It was intended by it to reverse the rule announced by the court which forbade allowances in such proceedings and to enact a new rule, to wit, the allowance of an indemnity to the landowner for the expenses of his defense. Matter of Lake Shore, etc., R. R. Co., 48 N. Y. St. Repr. 360.

If costs can be awarded the respondent at all, it seems to me it should be such costs as are allowed by the Code in cases most similar to the one in hand. This is only answered by saying that section 3240 of the Code assimilates the costs to those of actions, and that proceedings under the Condemnation Law are not actions, but special proceedings. But though commenced by petition and notice, the Code makes condemnation proceedings practically an action. Judgment is to be entered therein and provisions for the conduct of actions are made to apply to it. I think the argument too technical which would give the respondent his costs as in an action and deny his right to an allowance in condemnation proceedings. Application granted. I will hear the parties as to the amount.

In accordance with this opinion, counsel attended before Justice Cullen to have the amount of the allowance determined.

Counsel for the city of Brooklyn argued that the allowance to be granted was controlled by section 3254 of the Code, under which it could not, in any case, exceed $2,000.

On behalf of the water company it was argued that sec- • tion 3312 was intended to provide a new rule as to allowances in condemnation proceedings only, under which an allowance of any sum not exceeding five per cent upon the award could be granted; that such allowance could be granted whenever the award exceeded the amount of the offer to purchase, or where no offer to purchase had been made. It was further contended that the allowance in condemnation proceedings was intended as an indemnity to the owner of the property to reimburse him for the expense of defending the proceedings. Counsel cited the case of the United States v. Dyker Meadow Land Company (decided by Judge Benedict in the United States District Court of the eastern district of New York, opinion not reported), where the court granted an extra allowance of $5,000.

Cullen, J., decided that section 3254 did not apply to the case, and held that an allowance of $10,000 should be granted to the water company in addition to its taxable costs.

Ordered accordingly.  