
    In the Matter of the Application of Walter V. Peterson, Appellant, for the Laying Out of a Highway in the Town of Cambria. The Town of Cambria and the Highway Commissioners of Said Town, Appellants. Walter V. Peterson and J. Frank Smith, Guardian ad Litem for Floyd Perrin and Others, Respondents, Appellants.
    
      A proceeding for the laying out of a highway is a special pn'oceeding — the costs and disbursements of the petitioner are allowable as in an action — section 152 of the Highway Law relates to costs of motions as distinguished from, the costs of the proceeding itself.
    
    A proceeding under the Highway Law to lay out a highway is a special proceeding within the meaning of section 3334 of the Code of Civil Procedure, and the petitioner, if successful, is entitled, in the discretion of the court, to recover costs and disbursements at the rate allowed in an action under section 3240 of such Code, which provides that costs in a special proceeding may he awarded at the rates allowed for similar services in an action.
    Section 152 of the Highway Law, providing, “ Costs of a motion to confirm, vacate or modify the report of commissioners appointed by the court to lay out, alter or discontinue a highway may he allowed in the discretion of the court hot exceeding fifty dollars. Costs of any other motion in a proceeding in a court of record, authorized by this chapter, may he allowed in the discretion of the court not exceeding ten dollars,” only relates to the costs of motions made in such a proceeding, as distinguished from costs of the proceeding itself; and does not prevent the court, in its discretion, from awarding the latter costs pursuant to section 3240 of the Code of Civil Procedure.
    
      Appeal by The Town of Cambria and others from an order of the County Court of- Niagara county, entered in the office of the clerk of the county of Niagara on the 22d day of August, 1903, confirming an award of commissioners theretofore appointed in the proceeding.
    Also an appeal by the petitioner,, Walter Y. Peterson, from that part of said order which disallows his costs and disbursements, and by J. Frank Smith, guardian ad litem for Floyd Perrin and others, from so much of said order as disallows and denies his fees as such guardian ad litem.
    
      P. F. King, J. H. Leggett and F. J. Brown, for the appellants, Town of Cambria and Highway Commissioners.
    
      J. Fra/nk Smith, special guardian, for infant parties appellant.
    ' Abner T. Hopkins and W. W.. Brim, for the respondent and applicant.
   Stover, J.:

This proceeding is under the Highway Law (Laws of 1890, chap. 568, § 82 et seq., as amd.), and an examination of the record discloses to us no reason for a reversal of the order in so far as it confirms the action of the commissioners. The County judge, however, upon the motion to confirm the report, refused to allow the petitioner his costs and disbursements, solely upon the -ground of lack of authority.

The provisions of the Highway Law covering costs in proceedings of this kind are found in sections ;92, 93 and 152. By section 92 (as amd. by Laws of 1897, chap. 344) it is provided: “ In all cases of assessments of damages by commissioners appointed by the court, the costs thereof shall be paid by the town except when reassessment of damages shall be had,” etc., which exception has no application to the present case.

By section 93 (as amd. by Laws of 1898,.chap. 106) it is provided: “ All damages to be agreed upon, or which may be finally assessed, and costs against the town, as herein provided, shall be laid before the board of town auditors, or in towns not having a board of town auditors, before the town board, to be audited with the charges of the commissioners, justices, surveyors, or other persons or officers. employed in making thé assessment, and for whose services the town shall he liable, and the amount shall be * * * levied and collected.”

The word costs ” as used in the statute has a well-defined significance, and is not used as synonymous - with “ expense,” but must be taken to mean costs which are recoverable under the statute regulating the amount to he paid by the unsuccessful party to the successful party.

Proceedings of this character have been held to be special proceedings under the statute regulating the allowance of^ costs, (Matter of Grade Crossing Commissioners, 17 App. Div. 56; Matter of South Market Street, 80 Hun, 246.)

This being a proceeding brought in the County Court it would seem to be directly within the definition of section 3334 of the Code of Civil Procedure, defining a special proceeding, and hence governed by section 3240 with reference to costs.

Under section 3240 of the Code of Civil Procedure, “ costs in a special proceeding instituted in a court of record, * * * where the costs thereof are not specially regulated in this act, may be awarded' to any party, in the discretion of the court, at the rates allowed for similar services, in an action brought in the same court, or an appeal from a judgment taken to'- the same court, and in like manner.”

It would seem that this section was broad enough to permit the taxation of costs in this proceeding, but some question is raised by reason of the provisions of section 152 of the Highway Law, which is as follows: “ Costs of a motion to confirm, vacate or modify the report of commissioners appointed by the court to lay out, alter or discontinue a highway may be allowed in the discretion of the court not exceeding fifty dollars. Costs of any other motion in a proceeding in a court of record, authorized by this chapter, may be allowed in the discretion of the court not exceeding ten dollars.”

The County Court in this case allowed to the petitioner fifty dollars, or the costs of motion, but declined to allow any other or further costs or disbursements by reason of lack of power to do so, the contention being that the petitioner’s only recourse was the presentation of a claim to the board of town auditors or the town board, as the case may be, under section 93 of the Highway Law (supra). We think this was an erroneous interpretation of the statute. . '

It was held in. People ex rel. Bevins v. Supervisors (82 Hun, 298) that tire word “ costs,” as used in section 92, referred to such costs as were allowed under the provisions of section 152 of the act, which are the motion costs upon the application for confirmation of the re port of the commissioners; arid this ¿mount being fixed, the board of supervisors (now the board of town auditors or the town board) would have nothing to do but allow the claim at the amount fixed by the court, and include it in the tax levy. -

The opinion in People ex rel. Bevins v. Supervisors (supra) is directed to another feature of the law, that proceeding having been brought for the purpose of compelling the payment of some expenses which were alleged to have been incurred by the commissioner of highways in the matter of laying out the highway, and a mandamus was there refused, so that that case sheds but little light upon the question under consideration. Upon the one hand there is no intention manifested to take the proceedings o;ut of the operation of section 3240 of the Code of Civil Procedure, for to do this might result in placing an unnecessary and unfair burden upon the petitioner. It is not to be presumed that the Legislature intended to exclude proceedings of this character from the operation of said section 3240, and thus put up.ón a petitioner the burden of conducting the proceeding without any indemnity whatever.

By sections 88 and 89 of the Highway Law (as respectively amd. by Laws of 1894, chap. 334, and Laws of 1899, chap. 703) provision is made for the payment of costs in case it shall be determined that the road is unnecessary and the prajyer of the petitioner should be denied, or upon the reversal of such a determinatioh of the commissioners.

If the contention of the respondent is correct, we have, therefore, provision made for all expenses and costs of the proceeding except in the very instance in which those costs and expenses would be the most onerous. A petitioner who should fail in having the commissioners declare the road a necessity would be chargeable with costs not to exceed fifty dollars, and yet, having succeeded in his contention, is unable to recover his disbursements,- which, in this case, amount to several times the amount which could have been allowed him if he had failed.

Upon the other hand, allowance of costs not exceeding fifty dollars is an unusual provision of the law, and the reason is not quite apparent, although it may be argued that a motion to confirm involves some extraordinary features which are not usual in motions in other actions and proceedings, and yet many instances of motions and actions could be cited where the labor involved would be much more than in the ordinary proceeding to confirm the report of commissioners. Yet with this, if the legislative intent is clear, the court has nothing to do. The argument in favor of either construction is not entirely satisfactory, and yet it seems to us that the hardship that might result if there were a total lack of power in the court to allow costs of the proceedings under section 3240 of the Code of Civil Procedure entirely overbalances the other considerations, and as costs both under said section of the Code of Civil Procedure and upon the motion are discretionary, no injustice would likely be done by following that construction which Avould allow the. court to exercise its discretion, for the other construction would deprive the court of any discretion whatever as to the allowance of costs and prevent the reimbursement of a petitioner, however meritorious the application or unjust the burden placed upon him. Under section 3240 of the Code of Civil Procedure the court should have exercised its discretion, and if costs were allowed to the petitioner they should have been taxed at the rates allowed for similar services in an action brought in the County Court.

We think that a fair interpretation of the various provisions of both the Highvvay Law and the Code of Civil Procedure is this: That under section 3240 of the Code of Civil Procedure the petitioner, if successful, is entitled, in the discretion of the court, to recover costs at the rates allowed for similar services in an action brought in the County Court, and which, under section 3256 of the Code of Civil Procedure, carry with them the necessary disbursements as allowed by the section last cited.

A motion is an application in an action, and motion costs are entirely independent of those allowed in an action upon final judgment.

Subdivision 3 of section 3251 of the Code of Civil Procedure expressly limits motion costs in an action to ten dollars, unless otherwise specially provided. It was within the power of the Legislature to say that upon a motion of the character under discussion the costs might, in the discretion of the-court, be allowed in a sum not exceeding fifty dollars. There is no express declaration making these the only costs allowable, but by section 152 of the Highway Law itself it also allows not more than ten dollars costs in other motions in the proceeding. It would appear that other motion costs could be allowed where necessary, nor is there any expressed intention to take the proceedings out of the operation of section 3240 of the Code of Civil Procedure.

The costs under section 152 of the Highway Law are expressly stated to be motion costs, and are properly distinguishable from costs of an action or special proceeding, and it is not unlike proceedings in an action where an application to the court is necessary before judgment and after trial of the issues, in which it would be entirely proper to .tax both the costs of the motion and the costs of the action. But on a motion in proceedings under the Highway Law, by the express provisions of section 152, costs upon the application for confirmation are permitted in the discretion of the court, not exceeding fifty dollars, while on all other motions costs are limited to ten dollars. This construction would seem to give full effect to the provisions of the Code of Civil Procedure and the Highway Law, and is not opposed to practice and proceeding3 in actions.

All concurred.

Order of County Court affirmed in so far as it confirms the report of commissioners, and reversed in so far as the court refuses to exercise its discretion with reference to the allowance of costs, and said order is modified so as to ¡allow petitioner to tax costs pursuant to section 3240 of the Code of Civil Procedure, with costs of this appeal to the appellant.  