
    (67 Misc. Rep. 514.)
    In re TERRY.
    (Delaware County Court.
    April 25, 1910.)
    1. Highways (§ 61)—Establishment—“Costs”—“Fees.”
    Highway Law (Consol. Laws, c. 25) § 193, relating to proposed highways, requires the application to be accompanied by the undertaking of the applicant, to the effect that, if the commissioners determine that the proposed highway or alteration is not necessary or that the highway proposed to be discontinued is not useless, the sureties will pay to the 'Commissioners their compensation at the rate of $4 per day and all costs and expenses necessarily Incurred In the performance of their duties, which amount shall not exceed the sum of $100. Section 240 provides that the costs of motion to confirm, etc., the. report of the commissioners may be allowed at the discretion of the court, not exceeding '$50. Section 198 provides that, if a majority of the commissioners determine that the proposed highway or alteration is not necessary, etc., they shall make duplicate certificates to that effect that the costs and expenses necessarily incurred by such commissioners shall be indorsed on such certificates, and on confirmation of such decision, and of the amount of such costs and expenses, such costs and expenses not exceeding $100, shall be payable by the applicants. Held, that since “costs” are the expenses incurred by the parties in the prosecution or defense of a suit, whereas “fees” are compensation to an officer for services rendered in the progress of the cause, where the commissioners determine that the proposed highway or alteration is not necessary, the costs and expenses cannot exceed $100.
    [Ed. Note.—For other cases, see Highways, Dec. Dig. § 61. 
    
    For other definitions, see Words and Phrases, vol. 2, pp. 1633-1640; vol. 8, p. 7620; vol. 3, pp. 2705-2716.]
    2. Highways (§ 61*)—Establishment—Costs—'“Special Pboceeding.”
    A proceeding for the laying out of a highway being a “special proceeding" within the meaning of Code Civ. Proc. § 3334, costs may be awarded the successful party under section 3240, providing that costs in a special proceeding may be awarded to any party in the discretion of the court.
    [Ed. Note.—For other cases, see Highways, Dec. Dig. § 61.*
    For other definitions, see Words and Phrases, vol. 7, pp. 6586-6590; vol. 8, pp. 7802, 7803.]
    3« Costs (§ 8*)—On Dismissal.
    Where an action or proceeding is commenced in a court of record, and it appears on the trial or hearing that the court is without jurisdiction, and the case is dismissed, the moving party is liable for costs.
    [Ed. Note.—For other cases, see 'Costs, Cent. Dig. § 16; Dec. Dig. § 8.*]
    4. Highways (§ 61*)—Establishment—Costs.
    On discontinuance by the applicant of proceedings for the laying out of a highway, the. court may, in its discretion, award costs in favor of the contestant.
    [Ed. Note.—For other cases, see Highways, Dec. Dig. § 61.*]
    Application by Albert W. Terry to lay out, alter, and discontinue a highway in the town of Harpersfield, etc. Judgment in accordance with opinion.
    W. H. Johnson, for the motion.
    Frank M. Andrus, opposed.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   KELLOGG, Acting County Judge.

This is a motion to confirm the report of the commissioners heretofore appointed in this proceeding who found and decided that the proposed highway was not necessary, and that the road proposed to be discontinued was not useless, and granting the motion to dismiss the application.

No objection was made upon the return of this motion to the granting of an order confirming the report of the commissioners, which doubtless carries with it the allowance of and directions for the payment of costs and expenses of the commissioners, not exceeding $100. Section 193 of the new highway law (Consol. Laws, c. 25), approved February 17, 1909, contains the following language:

“Such application shall be accompanied by the written undertaking of the applicant, executed by one or more sureties approved by the county judge, to the effect that if the commissioners appointed to determine that the proposed highway or alteration is not necessary, or that the highway proposed to be discontinued is not useless, the sureties will pay the commissioners their compensation, at the rate .of four dollars for each day necessarily spent, and all costs and expenses necessarily incurred in the performance of their duties, which amount shall not exceed the sum of one hundred dollars.”

It would seem that this obligation has reference to the payment of commissioners’ fees and expenses, which, according to the indorsement on the report or certificate of the commissioners, required by section 198, amounts to $94.66, being within the amount specified in the undertaking of the application.

The town superintendent by his attorney also contends that he is entitled to an additional allowance under section 240 of the highway law, which reads as follows:

“Costs of 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 at the discretion of the court, not exceeding fifty dollars.”

It is claimed that such an allowance may be made to the prevailing party on this motion to confirm, and that the limit of the liability of the unsuccessful applicant is $150, to wit, not to exceed $100 on account of fees and costs of commissioners, and not to exceed $50 more, in the discretion of the court, as costs of motion to confirm.

The applicant, however, objects to paying costs and expenses in the proceeding in excess of the sum of $100, and insists that there is no liability on his part, except as it comes within the provisions of the undertaking, which he had filed. It is possible that the contention of the contestant would be correct were it not for the provisions of section 198 of this same statute, as it is obvious that the provisions of that section of the new highway law must be read in connection with sections 193 and 240. Section 198 reads as follows:

“If a majority of the commissioners appointed by the County Court shall determine that the proposed highway, or alteration is not necessary, or that the highway proposed to be discontinued is not useless, they shall make duplicate certificates to that effect. The costs and expenses necessarily incurred by such commissioners in the proceedings shall be indorsed upon such duplicate certificates, and upon a confirmation of such decision, and of the amount of such costs and expenses, not exceeding the sum of one hundred dollars, shall be payable by the applicants.”

What meaning is intended to be conveyed by the use of the word “costs” in the latter part of section 193 is exceedingly obscure in connection with the use of the words, “and expenses necessarily incurred in the performance of their duties, which amount shall not exceed the sum of one hundred dollars.” What costs could necessarily be incurred by the commissioners in the performance of their duties, unless fees are to be termed costs ? But fees do not properly come within the definition of the word “costs.” If costs were intended to mean fees in section 193, is the same. construction to he placed upon the word “costs” in section 198? The latter part of section 198 says:

“Tfie costs and expenses necessarily incurred by such commissioners in the proceeding shall be indorsed upon such duplicate certificates, and upon a confirmation of such decision and of the amount of such costs and expenses by the County Court, such costs and expenses not exceeding the sum of.one hundred dollars shall be payable by the applicants.”

What did the Legislature intend when they continued the use of the words “such costs and expenses,” seemingly continuing to refer to the costs and expenses of the commissioners, and not to costs and expenses incurred by the parties or either of them. The commissioners are not the parties to the proceeding, and hence what costs could they incur? Costs are defined to be the expenses incurred by the parties in the prosecution or defense of a suit at law. They are distinguished from fees in being an allowance to a party for expenses incurred in conducting his suit, whereas fees are compensation to an officer for services rendered in the progress of the cause. 1 Bouvier, 370; Musser v. Good, 11 Serg. & R. (Pa.) 248. Sections 193, 198, and 240 of the statutes in question read in connection with each other, and with the correct definition of the word “costs,” would seem perhaps to require the construction that, where the commissioners appointed shall determine that the proposed highway or alteration is not necessary, or that the highway proposed to be discontinued is not useless, in no instance can the costs and expenses allowed by the County Court to be paid by the applicant exceed the sum of $100. However, as an original proposition, I do not consider that this conclusion is free from all doubt. Sections 83, 88, and 152 of the former highway law (chapter 568, Laws 1890, as amended by chapter 334, Laws 1894) contain precisely the same provisions as sections 193, 198, and 240 of the new highway law (chapter 25 of the Consolidated Laws), with the exception that, in section 88 of the old statute, the amount of costs and expenses could not exceed $50, while under the present section (198) the statute reads “one hundred dollars.” Section 152 of the former law contained the same provisions in regard to costs of motion as section 240 of the new statute.

It was held in Patton v. Miller, 28 App. Div. 517, 51 N. Y. Supp. 202, that notwithstanding the provisions of sections 83 and 88 that the liability of an applicant for the opening of a highway, in case an application fails, is limited to $50, and where the applicant has already paid costs of parties opposing the application, as fixed by the order of the County Court, amounting to that sum, the commissioners appointed to determine upon the necessity of the highway cannot recover their fees. The $50 allowed in Patton v. Miller, supra, as costs to the parties opposing the application, must have been under and pursuant to section 152 of the highway law then in force, and, the applicant having failed in that case, the court must have construed sections 83, 88, and 152 in fixing the maximum costs and expenses which could be allowed against the applicant. Assuming, then, that the opinion in Patton v. Miller is good law, it is decisive of the first question involved as to the amount of the costs and expenses which may be allowed against the applicant, arising on the motion herein, to confirm the report of the commissioners, and that the same cannot exceed the sum of $100.

It is also suggested by the contestant that he is entitled to costs in the discretion of the court under and pursuant to the provisions of sections 3334 and 3240 of the Code of Civil Procedure. In the Matter of Peterson, reported in 94 App. Div., commencing on page 143, and 87 N. Y. Supp. 1014, it was held that a proceeding under the highway law to lay out a highway in 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 be awarded at the rates allowed for similar services in an action, and that such costs are clearly distinguishable from costs of motions as laid down in the highway law. If a successful petitioner is entitled to such costs and disbursements in the discretion of the court, then a successful contestant would be entitled to the same allowance, as against an unsuccessful applicant. In fact, section 3240 expressly provides that such costs may be awarded to any party in the discretion of the court. Under this last-mentioned decision, there can be no doubt as to the power of this court to award costs to the successful party in this proceeding in its discretion, at the same rate as in an action, but the court will not so exercise its discretion in this case.

This- motion is also for an allowance of costs herein to the town superintendent of highways arising out of the discontinuance of a former proceeding instituted for the same purpose, and for such other and further relief as shall be just and proper, and the court may see fit to grant, besides $10 costs of this motion.

The applicant’s notice of motion in the first proceeding was returnable at Delhi, November 1, 1909, and at the request of Judge Grant, county judge of Delaware county, the judge, acting in this proceeding, took his place pursuant to the provisions of section 14 of article 6 of New York State Constitution, and, after hearing certain preliminary objections, the further hearing was by consent postponed to November 13th, at Stamford, at which time and place the applicant announced a withdrawal of the proceeding for the reason that certain preliminary steps required by statute had not been taken in order to confer jurisdiction. While in this particular instance the application for leave to discontinue and the permission granted was somewhat informal, yet the same was granted at the adjourned hearing of the first proceeding,' held, at Stamford; the court then saying that the question of costs would be reserved for further consideration, and, the allowance of such costs having been asked for in this motion, it becomes a proper subject for consideration. The town superintendent of highways was brought into court in the proceeding in the way provided by statute, appeared and opposed the application, and appeared at a subsequent hearing which was appointed for the purpose of taking preliminary evidence upon the question as to whether or not the village of Stamford was interested in the proceeding to such an extent as to fairly entitle it to notice of the application. The applicant then announced that certain preliminary papers had not been served in the manner required by statute, and that the court had not thereby acquired jurisdiction.

The jurisdictional question may not perhaps have been involved, but the decision of the matter of Trustees of White Plains, 65 App. Div., commencing at page 417, 72 N. Y. Supp. 1026, is authority for the contestant’s claim. On page 419 of 65 App. Div., on page 1026 of 72 N. Y. Supp., the court said: “There is no doubt of the power of the court to order a discontinuance. Matter of Petition of Butler, 101 N. Y. 307 [4 N. E. 518].” This being so, the question is fully answered in Matter of Waverly Waterworks Co., 85 N. Y. 478. The decision of the matter of Waverly Waterworks Co., 85 N. Y. 478, supra, was put upon the ground that the court, having the right in its discretion to refuse leave to discontinue, can determine upon what terms it may grant such leave, and its discretion is not limited to the payment of taxable costs. It seems that in all cases where a motion is addressed to the favor of the court, which it may in its discretion grant or refuse, it may impose terms as a condition for granting the motion, and, if the moving party cannot or will not comply with the condition, the result is simply a denial of the application. That such proceeding was liable to be dismissed for want of requisite preliminary steps on the part of the applicant to confer jurisdiction may be conceded, and yet, if such was the case, the contestant would nevertheless be entitled to costs. This proposition appears to be self-evident, as, for instance, where an action or proceeding of any kind is commenced in a court of record, and it appears on the trial or hearing that the court is without jurisdiction, owing either to want or authority to'hear or dispose of the subject-matter of the controversy, or to the lack of some preliminary procedure required in order to confer jurisdiction, it cannot be doubted that, if such action or proceeding is dismissed on either ground, the moving party is liable for a full bill of costs.

I have therefore reached the conclusion that the court may in its discretion fix a specific sum which should be paid by the applicant as the costs of said contestant upon such discontinuance, and that it should be done in this case, especially in view of the fact that the court has not exercised its discretion in awarding the contestant costs pursuant to the provisions of section 3240 of .the Code in the second proceeding. The contestant, therefore, may have order herein that the report of the said commissioners be in all things confirmed, and that their costs and expenses—$94.66—is hereby allowed, and directed to be paid by said applicant, and that the said contestant is further allowed the sum of $50 to be paid by the applicant as the costs of the discontinuance of the first proceeding. «

Ordered accordingly.  