
    In the Matter of the Application of The Grade Crossing Commissioners of the City of Buffalo to Appraise Certain Lands of Betsey Sully Chick, and Others. Betsey Sully Chick, Appellant, v. The Grade Crossing Commissioners of the City of Buffalo, Respondent.
    
      Additional allowance — it cannot be given in proceedings under the Buffalo (Trade Grossing Act.
    
    An owner of land in Buffalo, who.se property has been taken in a street widening • proceeding by the city grade crossing commissioners appointed under chapter 345 of the Laws of 1888, cannot be granted an extra allowance under section 13 of that act as none is thereby expressly ijrovided for, and, the matter being a special proceeding, its costs are controlled by section 3340 of the Code of Civil Procedure, a section making no provision for extra allowances.
    Nor can such an owner recover such an allowance under the Condemnation Law (§ 8373 of the Code of Civil Procedure),
    
      First, as the Grade Crossing Act in question was passed some two years before the Condemnation Law, and there is nothing in the latter act to indicate that it was intended to apply to the Grade Crossing Act. ■ •
    
      Second, as amendments to the Grade Crossing Act, regulating costs and taking effect on the same day with, and also after the passage of, the Condemnation Law, do not refer to the Condemnation Law, and Third, as the two acts are not in pari materia, as the purposes of the Grade Crossing. Act could not he accomplished by proceedings under the Condemnation Law.
    Appeal by Betsey Sully Chick from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of March, 1897, confirming the report of the commissioners in this proceeding, as denies her application for an extra allowance' for costs on the ground that there was no authority or power vested'in the court for the granting of such allowance.
    This proceeding was instituted by the grade crossing commissioners of the city of Buffalo under the ¡irovisions of chapter 345 of the Laws of 1888 to condemn a parcel of land owned by the defendants for the purpose of widening one of the streets of the city. The proceeding appeared to have been in all respects properly conducted, and, upon the motion at Special Term to confirm the award of damages, an application was made by the.defendant Chick for an additional allowance of costs. The application was denied,-and from the order denying the same this appeal is brought,
    
      John Laughlin, for the- appellant.
    
      Daniel H. McMillan, for the respondent.
   Adams, J.:

■ The appellant’s -property having been taken .for a public improvement, it is manifestly just and fair that she should not only be reasonably compensated therefor, but that she should be indemnified against all costs and expenses which she has incurred in her efforts to obtain adequate and proper damages for the property thus appropriated. (Matter of the City of Brooklyn, 148 N. Y. 107.) Indemnity by v/ay of costs is, however, not an inherent right. It is rather one which is created by statute, and can only be obtained in cases which are clearly, brought within the operation of-existing statutory provisions. (Fargo v. Helmer, 43 Hun, 17 ; Munson v. Curtis, Id. 214; Patterson v. Burnett, 17 Civ. Proc. Rep. 116.) It follows, therefore, that, unless there is some statute awarding costs and expenses to the appellant, none can be recovered by her. (In re City of Brooklyn, supra.)

Section 12 of the act under which these proceedings were instituted provides that, upon the confirmation -of the report of the commissioners, The court shall fix the amount of damages, costs, and' expenses allowed by law, to be allowed the landowner and the petitioner, and shall order the same to be paid,” etc.

It is obvious, therefore, that provision was made by the Legislature for the awarding of costs in this particular proceeding,. but as the amount to which'the appellant is entitled is, unfortunately, left somewhat indefinite, the duty is imposed upon us, by her appeal, to determine wliat construction shall be given to the language lust, quoted.

It appears to be pretty, well settled that this is what may be • denominated a special proceeding,” as that term, is defined by the Code of Civil Procedure (§ 3334; In re Brooklyn, supra), and it seems equally well settled -that, in the absence of some express statutory direction., the costs to be ■ awarded to the successful party in a special proceeding are fixed by section 3240 of the Code of Civil Procedure; that they are limited in amount to the “ rates allowed for similar services in an action in the same court,” and do not include anything by way of “ extra allowance.” (In re Holden, 126 N. Y. 589.) It is insisted, however, that inasmuch as the appellant •is entitled to such costs- and expenses as are “ allowed by law,” she may avail herself of a provision of the General Condemnation Law, which ■ provides that in proceedings instituted under that act the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceedings, and that it may also, in its discretion, grant an additional allowance of costs, not .exceeding five per centum upon the amount awarded. (Code Civ. Proc. § 3372.)

Upon the argument we -were not a little impressed with the apparent soundness of this proposition, which is certainly sustained by two Special Term decisions, each of which is entitled to great respect (Matter of Slade, 19 Misc. Rep. 230, and case there referred to); but after a more careful examination of the question we have found it necessary to revise our first impressions and to conclude that the section just cited cannot properly be invoked in aid of the appellant’s contention. • -

In reaching this conclusion we have been influenced by two considerations, which may be thus briefly stated: The act authorizing these proceedings is special in its character, and it was passed in 1888, some two years prior to the enactment of the General Condemnation Law. During this period of time there was consequently no law regulating the amount of costs to be awarded the appellant other than section 3240 of the Code of Civil Procedure, and although section 3372 might have been sufficiently comprehensive in its operation to have related to the special act, if the Legislature had so ordained, yet there is nothing to indicate that such was the intention of that body. On the contrary, if we apply the ordinary rules of construction, we are led to the conclusion that such was clearly not its intention.- For upon the very day that the general law went into effect, section 12 of the special act was amended, and the exact language of the original act respecting the allowance of costs was retained, without any reference whatever to the provisions of the general law (Laws of 1890, chap. 255), and two years thereafter the special act was again amended, without containing any such reference. (Laws of 1892, chap. 353.) These omissions seem to be quite ■significant, for it is but reasonable to suppose that if the Legislature had intended to make any of the provisions of the general act applicable to the special act which we are now considering, it would have clearly indicated such intention,, either in the general act or in one of the other of the amendments to the special act to which reference has been made.

But a still more formidable obstacle, in the way of the adoption of the defendant’s contention, is that the two acts are not so,related as to make them in pari materia.

As was said in the case to which we have adverted so frequently (In re City of Brooklyn, supra), if “ the purpose of the special act could have been accomplished by proceedings under the general act, the procedure under the general act might have been followed by force of section 3383 of the Code, although the prior special act furnished a method of its own.”

We do not think, however, that the purposes of the Grade Crossing Act could have been accomplished by the General Condemnation Law. Both statutes relate to condemnation proceedings, it is true, but in this case, as in the one cited, each statute is complete in itself and prescribes a system of procedure, each for itself, having many points of similarity, as also many points of divergence.” In this ■case, therefore, as in that, it may be said that “ the costs and allowances authorized in condemnation proceedings under the Code, by •fair intendment, relate to costs and allowances in proceedings thereunder,” and not to the costs and proceeding’s- allowed by this special act.

It is to be regretted that the conclusion we have reached has been found necessary in this particular instance, for the defendant’s application strikes us as a meritorious one. But if we are correct in our views, the difficulty which we have, pointed out, and which does not ■appear to have been brought to the attention of the Special Term, is one which must be obviated by legislation and not by adjudication.

The order should be affirmed, but without costs to either party.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  