
    UNITED STATES v. ENGEMAN.
    
      U. S. Circuit Court; Eastern District of New York,.
    
    
      July, 1891.
    
      Costs in special proceeding.] In proceedings under the new ~ondemnation law (Code Civ. Pro. § 3357 el seq), where the compensation awarded exceeds the amount of the offer, the defendant is entitled to recover costs under § 3372, and an extra allowance of five per cent, on the excess of the award over the offer is proper.
    
      The same ; proceeding in federal court.] Where the United States' proceeds in a federal court to acquire lands in this State under an act of congress which requires the proceeding “ to be prosecuted in accordance with the laws relating to condemnation of property of the States wherein the property may bé'situated,” the provisions of the condemnation act as to costs apply, and the award of costs and an extra allowance to a defendant receiving an award in excess of the offer, is proper.
    
      Eminent domain ; condemnationproceedings; allowance of interest?^ Where an order is made confirming a report of commissioners fixing the value of lands sought to be taken under the condemnation law, a provision allowing the defendant interest on the amount of the award from the date of confirmation of the report, is proper.
    Motion to confirm report of commissioners appointed to ascertain the compensation to be awarded for certain lands sought to be acquired by the United States.
    
      Jesse Johnson, U. S. District Attorney for the United States of America.
    
      Thomas E. Pearsall, for the owners.
   Benedict, J.

The report of the commissioners appointed to ascertain the compensation to be made to the above named owners for property at Plumb Island, to be taken for the use of the United States, having been filed, the district attorney now moves for its confirmation. No opposition being made, an order will be entered confirming the report.

The owners of the property at the same time apply for the insertion in the order of confirmation of a provision for the payment of interest from the date of the confirmation of the report. In my opinion, however, interest should be allowed from the date of the confirmation of the report. The commissioners have ascertained the present value of the land to be taken, and the owners of the land should have interest on the present value of the land from the time when the right of the United States to take the same attaches to the time when payment for the land is made.

The owners of the property likewise apply for costs under the provisions in the statute of the State of New York, in accordance with which this proceeding is by the statute of the United States required to be prosecuted. The district attorney objects upon the ground that in proceedings in the courts of the United States .only the costs provided by the statute of the United States can be allowed. My opinion, however, is that the rule applied in ordinary suits does not apply to a proceeding like this, which is required by the statute to be prosecuted in accordance with the laws relating to condemnation of property of the States (sic) wherein the property may be situated ” (26 Stat. at Large p. 316).

This statute requires the present proceeding to be in accord with the general condemnation act of the State of New York, passed in 1890. That act provides as follows:

“ If the compensation awarded shall exceed the amount of the offer, with interest from the time it was made, or if no offer was made, the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceedings, at the same rate as is allowed of course to the defendant when he is the prevailing party in an action in the supreme court, including the allowances for proceedings before and after notice of trial, and the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded.”
If, under the statute of the United States above quoted, which omits the words ‘ as near as may be,’ any provision of the State statute can be rejected, I see no occasion to reject the provision for costs, which fails to come within the description of provisions that may be rejected, as given by the United States Supreme Court, in Indianapolis R. R. v. Hunt (93, U. S. 301).
“ This provision, which it will be observed requires costs to be paid by the plaintiff to the defendant as of course in a case like this, when presented in a court of the State, should in my opinion be given effect in a proceeding in a court of the United States, which is-required by a statute of the United States to proceed in. accord with the statute of the State.
“ The property owners also ask for the allowance provided for in the State statute. That statute permits an allowance of ■ five per cent. upon the amount awarded. In this case the amount awarded is $90,000 but, as the United States were willing to pay $50,000, all the landowners are properly entitled to, is an allowance to be calculated upon the difference between $50,000 and the amount of the award, which is $90,000. Five per cent, on this difference is $2,000, and an allowance of this amount is granted.”  