
    In the Matter of the Application of the Board of Rapid Transit Railroad Commissioners. (Modification of Park Avenue Section.)
    First Department,
    January 25, 1907.
    Eminent domain — municipal corporation--- injury to abutting owners by construction of underground railway—counsel fees and necessary expenses allowed.
    The granting, of the application of the rapid transit commissioners of the city of New York to legalize an unauthorized use of Park avenue for an underground railway is in the discretion of the court, and where the use-of such street has catised-actual damage to abutting Owners, the' court in'its discretion will award the property -owners a reasonable amount for the expenses in ascertaining the amount of damage to which the property has been subjected. The award - should include compensation for counsel, taxable costs- and other disbursements necessary for the proper presentation of the casé to the court. A reasonable ■ counsel fee is five per cent upon the amount of the award- -made to each owner, not exceeding §1,000 -in any' case. ■
    Application to confirm the report of a referee.
    • John M. Bowers, for Welles, Girard and others, claimants. - - - Arthur II. Hasten,. for Charles T. Barney and others, claimants:
    ■ Charles Gibson Bennett, for A. D. Huntington, -claimant. Harrison <& Byrd, for George.H. Byrd, claimant. ■
    ■ Gilbert H. Crawford, for Frederick W. Devoe, claimant.
    
      Edward H. Shepard,' for Board of Rapid Transit Commissioners.
   Ingraham, J.:

This court having determined that.-before formal approval should he given to the report of the commissioners approving of the use of the east side of Park avenue between Thirty-fourth and Forty-second streets for the underground railway, the owners of abutting property on Park avenue shpuld be paid the damages that the actual construction of thfe unauthorized tunnel has caused to the abutting property (104 App. Div. 468); the entry of a final order confirming the report of the commissioners was postponed until the amount of such actual damage could be ascertained. The application now comes before the court for a final order based upon the report of a referee as to the amount of such actual damage.

The learned referee in a very satisfactory report has ascertained and reported the amount of damage occasioned to abutting propértv by the unauthorized acts of the board of rapid transit commissioners and its contractor in constructing the tunnel. The learned counsel for the rapid transit commissioners has filed no exception to the report of the referee and makes no objection to the various amounts which the referee has reported as the damage to such abutting property. It is sufficient to say that we adopt'the conclusions of the referee;

The refe.ree excluded all evidence as to- legal expenses occasioned by the efforts of the owners of abutting property to enjoin the construction of the tunnel or in opposition to the granting of this application, but he reported that it seemed -to be entirely feasible to treat this proceeding, so far as it relates to each claimant, as an independent special proceeding, and, as there is a recovery by each, the court could direct that each independent claimant should have his costs and disbursements and an extra allowance based upon the amount of his recovery in this proceeding, and he recommended that such an allowance be made.

I can see no reason why it is not proper in a proceeding of this character to add to the amount awarded to each property owner a reasonable amount for the expense of the proceeding to ascertain the amount of the damages to the abutting property. The board of rapid transit commissioners applied in this proceeding for a consent to legalize an unauthorized use of the public street. Whether or not such a consent should be' granted rests largely in the judicial discretion of the court who is to consider the rights of' the abutting property in the street and the right of the public at large to have the street applied to a public use. In determining whether such a consent should or should not be given, where it appears that the use of the street had actually caused serious damage to abutting property in constructing the railroad for the benefit of the entire city, and where the amount of such damage can be definitely ascertained, it is the duty of the court to require that such damage be paid before the use of the street is authorized. Where it was necessary for an abutting property owner to employ counsel and incur expense so as to definitely ascertain -the amount of. the damage to which the abutting property has been subjected, the reasonable cost thereof is as much an item' of damage as, the actual cost of repairs to the abutting property necessary to replace the building in the same. condition that it- was before the unauthorized usé -of the street. It seems to me, therefore, that, irrespective of any express authority to award costs in this proceeding, the court should award to the owner of each piece of abutting .property a reasonable sum for compensation for counsel, and for the other disbursements necessary for the proper presentation of the case to this court -and to the referee in-this proceeding. Under these circumstances I think a reasonable counsel fee to each of the parties who have appeared'before the referee would be five per cent on the amount of the award to the owner of each piece of abutting property, not exceeding, however,, in any one case the sum of $1,000.

The report of the referee, therefore, stands confirmed,«and the ‘ final order confirming the report of the commissioners will - be entered upon the payment to each -of the owners of the .abutting property of the amount- found by the referee as the damage caused to their property, together with the taxable costs and disbursements of the proceedings and an allowance for counsel fee to the amount above expressed. Upon proof of the payment of these amounts, counsel for the petitioner 'may present an order confirming the report of the commissipners appointed in this proceeding.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JL, concurred. ' .

Report of referee confirmed; order directed to be entered on conditions stated in opinion. Settle order on notice.  