
    Matter of the Application and Petition of the Board of Water Supply of the City of New York, to Acquire Real Estate Under Chapter 724 of the Laws of 1905 and the Acts Amendatory Thereof, in the City of Yonkers, Westchester County, New York (Hill View Reservoir, sections 1 and 2; Kensico Reservoir, section 3).
    (Supreme Court, Westchester Special Term,
    February, 1909.)
    Eminent domain — Measure of compensation — Costs — Lands taken for water supply of city of New York.
    The provisions of section 3240 of the Code of Civil Procedure . relating to costs are not applicable to proceedings to acquire lands for the water supply of the city of New York, under chapter 724 of the Laws of 1905 as amended by chapter 314 of the Laws of 1906.
    Chapter 724 of the Laws of 1905 is not merely supplemental to tire provisions of the charter of Greater New York, but provides in detail for the various steps culminating in the adoption of the plan or system in furtherance of which condemnation is required; and the provisions of section 496 are not applicable to a proceeding thereunder.
    
      Motion to confirm reports of commissioners of appraisal.
    Joseph S. Wood, Joseph A. Flannery and Woodson E. Oglesby, for various claimants, for motion for allowance of costs, etc.
    Francis K. Pendleton, Corporation Counsel (Henry T. Dykman, Special Counsel), opposed.
   Mills, J.

This is a proceeding taken under chapter 724 of the Laws of 1905. Upon the motions to confirm the above mentioned reports, counsel for various claimants to whom awards are made by such reports ask that such claimants may be allowed the regular statutory costs as in an action or special proceeding. They base this request upon two contentions, viz.: (1) That the act above recited does not provide at all upon the subject of costs, and that, therefore, section 3240 of the Code of Civil Procedure, authorizing the court in its discretion to allow in a special proceeding the costs of an action, is applicable here; and (2) That section 496 of the charter of Greater Mew York is applicable and authorized the commissioners to recommend the allowance of such costs, which in these reports they failed to do because of their belief that they did not have power to do so.-

The first contention was presented to me In the Matter of the Catskill Aqueduct, Section Mo. 2,” ante, page 324, more than a year ago; and, after carefully examining the question in that matter, I decided adversely to that contention and in July, 1907, filed an opinion giving at some length my views and reasons for reaching such conclusion. I have now re-examined those views and reasons and perceive no ground to change them or the conclusion then reached as to that contention. Mo appeal was taken from the order in that matter entered upon such decision.

The second contention above outlined, viz.: That section 496 of the charter of Greater Mew York is applicable to a proceeding like this taken under chapter 724 of the Laws of 1905, was not submitted to or considered by me in the Matter of the Catskill Aqueduct, Section Mo. 2, above mentioned. The learned counsel for the claimants here contend that in Matter of the City of Hew York (Town of Hempstead), 125 App'. Div. 219, decided in March last, several months after my decision above referred to, the Appellate Division in this, the Second, Department recently in effect sustained their second contention and in substance held that that section of such • charter is applicable to proceedings taken like this under chapter 424 of the Laws of 1905; and that, therefore, the commissioners had" power to recommend the allowance of statutory costs, and this court has now power to grant the same, or at least should remit the matter to the commissioners to exercise their discretion whether or not to recommend the allowance of such costs.

A careful review of the opinion of the Appellate Division in that case fails to convince me that that court should be regarded as having so held and decided. In that case the commissioners had been appointed under the provisions of the city charter, and the proceedings had been conducted thereunder. The court held that chapter 725 of the Laws of 1905 was to be regarded as supplemental to the provisions of the city charter and not at all as repealing by implication (there being no express repeal) the provisions of such charter as to costs; in other words, that the provisions of that act for allowance of counsel fees was not at all inconsistent with the provisions of section 496 of said city charter as to the allowance of costs, expenditures, etc., and, therefore, did not repeal them by implication. Beyond the very apt and forcible presentation of the constitutional need of legislative provisions to adequately reimburse a landowner for his necessary expenses in the condemnation proceedings, the gist of the reasoning of the opinion of that court appears to be that chapter 725 is a merely supplemental act and does not pretend to exclusively provide for condemnation proceedings of any class or kind to be taken by or in behalf of the city of Hew York; and that, therefore, its provisions upon the subject of allowances should not be regarded as intended to be exclusive. That this is a true characterization of the act is evident at once from its very title, as well as by its terms. The contrary appears to me to be the truth as to the act under which this proceeding is taken, viz., chapter 724 of the Laws of 1905. Such act provides in detail for the various steps culminating in the adoption of the plan or system in furtherance of which the condemnation is required, and also in detail for the various steps in making the condemnation, viz., the appointment of the commissioners and each proceeding by them or in connection with their action. Mo doubt said chapter 725 Is to be regarded as supplemental to said chapter 724, just the same as it is to be regarded as supplemental to the provisions of the city charter; and that, therefore, there can be no question as to the power of the court to make allowances for counsel fees not exceeding the limits prescribed.

It would seem that the provisions of said chapter 724, as supplemented by those of said chapter 725, for the allowance of expenses and disbursements, including reasonable compensation for witnesses and also counsel fees, the latter not exceeding five per cent, of the amount of the award, are sufficient to satisfy the constitutional requirement of “ just compensation,” so far as the landowner’s necessary expenses are concerned. The term “ expenses ” is of broad meaning and may doubtless cover any necessary expense except those items (e. g., counsel fees) specifically mentioned and otherwise provided for in the statute.

My conclusion, therefore, is that section 496 of the charter of Greater Mew York is no more applicable in this proceeding than is section 3240 of the Code of Civil Procedure; and that, therefore, the motions or applications for an allowance of statutory costs must be denied; but that counsel fees should be allowed to the extent of five per cent, upon the various awards.

Ordered accordingly.  