
    Matter of the Application of the City of New York, Relative to Acquiring Title in Fee Wherever the Same Has not Been Heretofore Acquired for the Same Purposes in Fee to the Lands, Tenements and Hereditaments Required for the Opening and Extension of Union Street from New York Avenue to Rochester Avenue and from Ralph Avenue to East New York Avenue in the Twenty-fourth and Twenty-ninth Wards of the Borough of Brooklyn, City of New York.
    (Supreme Court, Kings Special Term,
    October, 1916.)
    City of New York —street openings in — condemnation proceedings — evidence — Greater New York Charter, § ggg.
    Where after the death of one of the commissioners appointed in a proceeding for the opening of a street in the city of New York the evidence adduced during his lifetime was made use of by the other commissioners in making up their report, and the city makes no claim that the matter had to be gone over anew, it is liable to the estate of the deceased commissioner for his fees, it appearing that the city was not called upon to pay his successor any fees or charges for work done or time spent by the now deceased commissioner.
    There is nothing in the provisions of section 999 of the Greater New York Charter relating to costs of commissioners and fixing their compensation which precludes the making of an allowance to the estate of a deceased commissioner upon the theory of quantum meruit for the work which he faithfully performed.
    Application for the purpose of taxing costs in a street opening proceeding.
    Peter P. Smith, for estate of John J. Brennan.
    Lamar Hardy, corporation counsel, for City of New York.
   Manning, J.

This application is made for the purpose of taxing the costs in a street opening proceeding and the only question involved concerns the liability of the city for certain fees claimed to be due the estate of one of the commissioners who died before the final report in the matter was made. It appears that one John J. Brennan was duly appointed a commissioner of estimate on the 8th day of February, 1912, that he qualified and thereafter acted in such capacity up to the time of his death, which' occurred in the latter part of December, 1914. During the time between his appointment and his death, it is admitted and certified to by the corporation counsel, the deceased commissioner actually and necessarily rendered services in the proceeding. Such services consisted in attending ninety-four meetings, at which the time actually and necessarily spent exceeded one hour each, and twelve meetings at which the time actually and necessarily spent did not exceed one hour. During these hearings a large amount of testimony was taken. The property was viewed and the deceased commissioner appears to have taken a very active part in reference to the proof of title of the claimants, and also on the question of values. It further appears that after his death the evidence adduced during his lifetime was made use of by the other commissioners in making up their report and no claim is made by the city that the matter had to be gone over anew. In fact the city is not called upon, as appears by the certificate of the corporation counsel, to pay the deceased commissioner’s successor any fees or charges for the work done .or the time spent by Commissioner Brennan during his lifetime. This is further evidenced by the bills of the commissioners now presented for taxation; for instance the fees of ^Commissioner Blanchfield are set forth as amounting to $1,230, those of Commissioner Hirschfield, $1,250, while the fees of Commissioner Eckstein, the man who was appointed to succeed Commissioner Brennan, are given as only $300. Most of the work, • including the making of a preliminary report, and also the vesting of title to various parcels of property, had been completed when Mr. Brennan died. Prior to his death he had faithfully performed his duties in conjunction with the other commissioners, and it is only fair to assume that these commissioners and also the city received and enjoyed the benefit and value of his industry and experience. He did not resign his place nor is he charged with abandoning his work. All that can be said is that the hand of death fell upon him before he could complete his labors and so the question is, in such a case, shall the city profit by his work and escape paying what his services are reasonably worth.

To refuse payment in such a case seems to me to be neither just, fair nor equitable and to uphold nonpayment upon technical grounds would be straining the law to the breaking point. In fairness to the city and the corporation counsel it appears that no strenuous opposition is made to the payment of the bill, but it is claimed by the corporation counsel that in view of a prior decision by one of the justices of this court in Matter of New York Municipal Railway, N. Y. L. J., May 15, 1916, the services of the commissioner cannot be paid either upon a per diem basis or upon a quantum meruit. Mr. Justice Benedict in this case said: No allowance should be made for the services of a deceased commissioner. The office of commissioner is similar to that of a referee (Matter of City of New York, 140 App. Div. 203) and the estate of a deceased referee has been held not to be entitled to his fees where he died before rendering his report. (Hebard v. City of New York, 137 App. Div. 752.) ”

While I recognize the force of the above decision and the cases therein cited as applying to the facts in that case, they are not decisive and controlling upon the facts as presented in the present application. As I read the case of Matter of City of New York (Valley Stream), 140 App. Div. 203, it concerned an application by the commissioners to receive an award before the completion of the proceeding for services rendered to a certain date, and it was held that the court was without power to make such an award prior to the completion of the work and confirmation of the report. The Hebard case only decided that the fees of a sole referee who died before signing his report could not be taxed. No criticism can be made upon this reasoning, for, of course, the death of a sole referee before the conclusion of his report necessitates the appointment of a new referee and a trial of the matter de novo. The cases above referred to are not analogous to the present one and in my opinion are easily distinguished therefrom.

Section 999 of the charter provides for costs of commissioners and fixes their compensation as follows: “ Each of the commissioners of estimate shall receive $10 for each day upon which he attends a meeting of the said commissioners and is actually and necessarily employed in performance of the duties imposed upon them by this act at the offices provided for said commissioners by the bureau of street openings in the law department, or at the meeting of the commissioners to view the premises provided the time necessarily required and actually spent at each meeting exceeds one hour. * * * such costs, fees and expenses or disbursements, which by law are required to be taxed, as in this chapter provided, shall be stated in detail in the bill of costs and charges and expenses and shall be accompanied by such proof of the reasonableness and necessity thereof, as is now required by law and the practice of the said court upon taxation of costs and disbursements in other special proceedings or actions in said court.”

I see nothing.in either of these provisions which precludes the court from entertaining an application for an allowance to a commissioner who has substantially completed his labors, as is the case now before the court, and in my opinion it would be in furtherance of justice and fair dealing to compensate the estate of Commissioner Brennan upon the theory of quantum meruit for the work which it is admitted he faithfully performed.

• Considering the fees of the other commissioners, as presented to be taxed, I am inclined to hold that a just and fair amount to be fixed as the fees due to the deceased commissioner is the sum of $900, and this amount is accordingly allowed and directed to be taxed.

Ordered accordingly.  