
    In the Matter of the Petition of J. Edward Simmons and Others, Constituting the Board of Water Supply of the City of New York, Hillview Reservoir, Section No. 2, (Eighth Separate Report).
    (Supreme Court, Westchester Special Term,
    March, 1911.)
    Eminent domain — Measure of compensation — Costs—Additional allowance —Amount.
    The provisions of section 3-254 of the Code of Civil Procedure are applicable to allowances for counsel fees in proceedings for the acquisition of lands under chapter 724 of the Laws of 1905, providing for an additional water supply for the city of New York, and prevent the allowance of more than $2,000 for counsel fees to any claimant in such proceedings.
    Motion to fix the allowances for counsel fees to be made in a proceeding to acquire property for a water supply for the city of Hew York.
    Archibald R. Watson, Corporation Counsel, for city New York.
    Joseph A. Flannery, for claimants.
   Tompkins, J.

This motion involves, among other things, the question whether the court has power to award to the claimants more than $2,000 each, for counsel fees, where the awards exceed $40,000 each.

Section 32 of chapter 724 of the Laws of 1906, under which this proceeding was brought, provides as follows: The fees of the commissioners and the salaries and compensation of their employees, and their necessary traveling expenses, and all other necessary expenses, in and about the special proceedings provided by this act to be had for acquiring title or extinguishing claims for damages to real estate, and such allowances for counsel fees as may be made by order of the court shall be paid by the comptroller of the city of Hew York out of the funds hereinafter provided. Such fees and expenses shall not be paid until they have been taxed before a justice of the supreme court in the judicial district in which the lands or some part thereof are situated, upon eight days’ notice to the corporation counsel of the city of Hew Fork. Such allowances shall in no case exceed the limits prescribed by section 3253 of the code of civil procedure.”

This is the only provision of that act relating to allowances for counsel fees. Section 3253 of the Code of Civil Procedure, referred to in that part of the act just quoted, so far as it has application to this question, reads as follows, and did at the time of the enactment of chapter 724 of the Laws of 1905: § 3253. 2. In .any action, or special proceeding, specified in this section, where a defense has been interposed, or in an action for the partition of real property, a sum not exceeding five per centum upon the sum received or claimed, or the value of the subject matter involved.”

'Section 3254 of the Code of Civil P'rocedure reads as follows: “Allowances under the foregoing sections limited. But all the sums awarded to the plaintiff, as prescribed in section 3252 of this act, or to a party or two or more parties on the same side, as prescribed in the last sentence of section 32-51'of this act, and in subdivision second of the last section, cannot exceed, in the aggregate, two thousand dollars.”

This court has been in the habit, in these proceedings, of awarding five per cent, upon the awards to cover counsel fees, and now for the first time, in a proceeding under chapter 724 of the Laws of 19'0-5, is the question presented as to whether the limitation of section 3254 of the Code of Civil Procedure applies.

In the case of parcel Ho.' 117, five per cent, upon the award would be $2,054; and, in the case of parcel Ho. 95, five per cent, upon the award would be $11,5'0'0-. The right to any allowance for counsel fees depends upon the provisions of section 32 of chapter 724 of the Laws of 1906, and that section expressly -provides that in no case shall any allowance for counsel fees exceed the limits prescribed by section 32-53 of the Code of Civil Procedure, thereby making the provisions of that section of the Code applicable; and while section 3254 of the Code of Civil Procedure, which expressly limits all allowances under section 3253, is not mentioned in the Water Supply Act, yet it seems to me that it must apply to the power of the court under that act, because, by express terms, it-limits all allowances that may be made in any action or proceeding under section 3253. But counsel for- the claimants insist that the court is neither required nor permitted to look beyond section 3253 to determine what shall be the maximum allowance; that the only limitation affecting section 32 of the Water Supply Act is the five per cent, maximum, regardless of the amount of the recovery, and that section 3254 cannot be applied here, becquse the statute fixes the limit by reference to section 3253 alone; but it seems to me that these two sections, 3263 and 31264, of the Code must be read together and together be applied to thé provisions of section 32 of chapter 724 of the Laws of 1905, respecting allowances for counsel fees.

Chapter 724 of the Laws of 1906 makes no provision for costs, and section 32, above quoted, makes provision for allowances for counsel fees,” without which there would be no authority in the court to make any allowance, or award costs; and by that section the court’s power with respect to allowances is limited by'the provisions of section 3263 of the Code, and not by the provisions of subdivision 2 of that section, indicating to me that the intention of the Legislature was that all the provisions of section 3253 of the Code of Civil Procedure, and all other provisions of the Code relating thereto and in anywise limiting the pbwer of the court thereunder, should apply to these proceedings.

•Section 3254 of the Code is a modification and limitation of section 3253; and it is to be assumed that the Legislature enacted the Water Supply Act with full knowledge of the existence of these two sections and of their relation to each other, and that no allowance of five per cent, could1 be made under section 3253 without being limited in the aggregate, by section 3254, to the sum of $2,000. And it is my opinion that by section 32 of the Water 'Supply Act the Legislature intended to give the court power to make an award of five per cent, under section 3263 of the Code, subject, however, to the limitations that are expressly provided by section 3264 upon all allowances made under section 3253. Otherwise, it would have been entirely unnecessary for the Legislature to have made any reference to the Code of Civil Procedure, or any section of it in the Water Supply Act. It would have been sufficient to have provided in section 32 for a five per cent, allowance without a maximum ; and I think that the reference in the act to section • 3263 of the Code clearly shows that the intention was to' limit an allowance, not only to five per cent., but in the aggregate to $3,000; and it is my opinion that any allowance authorized to be made under section 3253 is subject to the limitation prescribed by section 3254 — in other words, that any allowance that ia either authorized or regulated -by section 3253 is subject to the provisions of section 3254.

I, therefore, fix the allowances in these cases at the sum of $'2,OOiO each, for lack of power to grant more, because I realize that, in the one case at least, parcel bTo. 95, the award is not sufficient to reasonably compensate counsel; and I believe, as I have before stated, that provision should be made so that the property owners whose lands are taken by the city shall not be required to pay any part of their awards for the services of counsel, and that they should have theii full awards free from all charges and costa.

Ordered accordingly.  