
    BLEY v. VILLAGE OF HAMBURG.
    (Supreme Court, Appellate Division, Fourth Department.
    May 5, 1903.)
    1. Highways—Change of Grade—Proceedings for Damages—Allowance of Costs.
    In a proceeding instituted to recover damages for a change of grade of a street in front of plaintiff’s premises, under section 159 of the village law (Laws 1897, p. 420, c. 414), the only provision of which relating to costs is that proceedings subsequent to the appointment of commissioners shall be in accordance with the provisions of the condemnation law, an allowance for costs in the proceedings previous to the appointment of the commissioners is discretionary with the court, as provided in Code Civ. Proc. § 3240, for costs in special proceedings, and such costs cannot be taxed by the clerk.
    Appeal from Special Term, Erie County.
    Proceeding under Village Law, Laws 1897, p. 420, c. 414, § 159, to recover damages sustained on account of a change of grade, by Charles F. Bley against the village of Hamburg. From an order reducing a bill of costs taxed by the clerk in favor of plaintiff, he appeals.
    Affirmed.
    Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.
    E. N. Heath, for appellant.
    Le Roy Andrus, for respondent,
   McLENNAN, J.

The proceeding was commenced by the service of a petition by the plaintiff asking for the appointment of commissioners to ascertain the compensation to be paid to the petitioner. The defendant made objections in writing to the form and sufficiency of the petition and to the jurisdiction of the court. An order was then, made temporarily overruling said objections and permitting the defendant to file and serve its answer, which it did. The issues raised by the answer were referred to a referee to take the allegations and proofs of the parties, and to report the same to the court with the opinion of the referee, The taking of the testimony and the argument before the referee occupied more than two days, when the referee made his report, finding, in effect, that the petitioner was injuriously affected by the change of the grade of the street, 'and that the plaintiff was entitled to have commissioners appointed to ascertain the damages sustained by the petitioner thereby. Upon the presentation of said report the court at Special Term made an order confirming the report of the referee, and appointing three commissioners to determine the compensation to be paid to the petitioner. Said order did not direct or provide for the payment of any costs to the petitioner on account of such hearing before the referee, so far as appears by the record before us upon this appeal. A hearing was had before the commissioners, which lasted for more than six days, and the commissioners awarded to the petitioner the sum of $ioo as his compensation for the change of grade of the street in question. The report of the commissioners, upon presentation to the court at Special Term, was confirmed, with costs to the petitioner. Thereafter the petitioner procured a bill of costs to be taxed in his favor by the county clerk, which included the following items: Costs before notice of trial before referee, $25; costs after notice and before trial, $15; trial fee, issue of fact before referee, $36; trial fee issue of law before court, $20; trial fee more than two days, $10; costs motion to confirm referee’s report, $10. It also appears that in addition to these items the clerk taxed costs in favor of the plaintiff as follows: Costs before notice of trial before commissioners, $25; costs after notice and before trial, $15; trial fee before commissioners, $30; costs on motion to confirm report of commissioners, $10—making in all $190. This was in addition to $492.18 taxed by the clerk as expenses and disbursements. The only items which were objected to before the clerk were the items amounting to $80 of costs of trial before the referee. Upon application to the Special Term, these items were stricken from the bill of costs, the rest of the items as taxed being allowed to stand; and from that order this appeal is taken.

We think that the order appealed from should be affirmed. The only fault that can be found with the order is that it did not strike other items from the bill of costs as taxed, but, as no objection was made to any of the other items, and no appeal is taken by the defendant, none of those items can be reached. The only authority for giving costs in this proceeding is contained in section 159 of the village law (Laws 1897, p. 420, c. 414), and in section 3240 of the Code of Civil Procedure, which relates to costs in special proceedings. Under section 159 of the village law the only provision relating to costs is as follows:

“All proceedings subsequent to the appointment of the commissioners shall he taken in accordance with the provisions of the condemnation law, so far as applicable, except that the commissioners in fixing their award must make .an allowance for benefits, if any, derived by the claimant from such improvement. The amount agreed upon for such damages or the award therefor, together with the costs, if any, allowed to the claimant, shall be a charge against such village, unless the award of the commissioners in favor of the ■claimant shall exceed the amount of the offer to settle or compromise such claim, he shall be liable for all the costs of the proceeding.”

It seems clear that under this provision of the law the petitioner is r.ot entitled, as matter of right, to costs except for the proceedings after the appointment of commissioners, and that the costo incurred prior to that time are in the discretion of the court, ar, in a special proceeding, to be allowed under section 3240 of the Code of C ivil Procedure. Undoubtedly, when the court confirmed the report of the referee and appointed commissioners, the order of confirmation might have included a provision for costs; but no such provision, so far as appears, was included in the order, and it seems clear that the county clerk did not have authority to supply that deficiency, or to exercise the discretion of the court, and tax costs as in an action. The provisions of the condemnation law do not affect in any manner the costs incurred by a petitioner prior to the appointment of commissioners. The cases cited by appellant’s counsel—Manhattan R. Co. v. Kent, 80 Hun, 559, 30 N. Y. Supp. 957; Id., 145 N. Y. 595, 40 N. E. 164; City of Johnstown v. Frederick, 35 App. Div. 45, 54 N. Y. Supp. 412; Village v. Cronk, 55 App. Div. 633, 67 N. Y. Supp. 419—do not in any manner support his contention. In fact, under those cases it seems clear that many other of the items taxed by the county clerk might properly have been stricken out of the bill of costs. By the bill of costs as taxed the petitioner receives double costs in this proceeding, double what he should receive in an action brought and tried in the ordinary way. Such double costs are not allowed by any provision of the Code or statute. The order appealed from should be affirmed, with costs.

So much of the order as is appealed from affirmed, with $10 costs and disbursements. All concur.  