
    In the Matter of the Application and Petition of John A. Bensel and Others, Constituting the Board of Water Supply of The City of New York, Appellants, to Acquire Real Estate for and on Behalf of the City of New York, etc., in the Town of Olive, Ulster County, New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. (Ashokan Reservoir, Section No. 13.) Joseph M. Powler and Others, as Commissioners of Appraisal, Respondents.
    
      Eminent domain — water supply, New York city — compensation of commissioners — necessary expenses — automobile hire.
    
   Appeal by the board of water supply of the city of New York from that portion of a Special Term order entered in the Ulster county clerk’s office on the 5th day of November, 1910, which allows the commissioners of appraisal in section No.12 §490 for automobile hire. Order modified so as to allow the commissioners §100 instead of §490 as stated in the order, and as so modified affirmed, without costs. All concúrred, except Betts, J., dissenting in opinion.

Betts, J. (dissenting):

The report of the commission for which this charge of §490 for automobile hire was incurred is upon seventeen parcels of land in above section in Ulster county, six of which were valued at §10 each, being simply a report on eleven parcels of property of any value. Por automobile expenses connected with the inspection of sucht parcels the commissioners have charged twenty-six trips at §490. The full amount was allowed in addition to other liberal allowances for expenses. The appeal is from the allowance for automobile expenses only. The authority of the court to tax expenses of any kind for these commissioners, of course, must be derived from the statute. Section 82 of chapter 724 of the Laws of 1905, so far as material, provides as follows: “ The commissioners of appraisal appointed in pursuance of this act shall receive as compensation such fees and expenses as may he taxed by the court upon notice to the corporation counsel * * *. The corporation counsel of the city of New York shall * * * appear for and protect the interests of the city in all proceedings in court under this act including the taxation of fees, compensation and expenses * * *. 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 * * * shall be paid by the comptroller of the city of New York * * *. Such fees and expenses shall not be paid until they have been taxed before a justice of the Supreme Court.” Section 5 of chapter 725 of the Laws of 1905 is practically similar to the one quoted from. It will thus be seen that the traveling expenses that the court is authorized to tax are the “necessary traveling expenses” of the commissioners. In this particular section the parcels of lands which these commissioners were appointed to appraise begin something about half a mile from 'the Ulster and Delaware railroad station at West Shokan and extend about a mile from the place of beginning. Many trains run upon this road from Kingston which stop at this station. The motion herein is made upon all the testimony taken and proceedings had before this commission and included therein is a large map which shows the distance practically as above stated as does also much of the testimony. According to the affidavit of Oliver B. Goldsmith, a special counsel, representing the corporation counsel of the city of New York, filed in opposition to the commissioners’ application for compensation and expenses, a map showing the locations of the parcels allotted to this commission showing that they are all located in or near the village of Shokan and a short distance from the West Shokan station on the Ulster and Delaware railroad, was attached to his affidavit, but that map is not in the printed record. West Shokan is about sixteen miles from the city of Kingston on the Ulster and Delaware railroad. The ordinary method of travel there is by the railroad and by carriage hire or livery. The affidavit of Edward F. Joyce in the record states that the city especially objected in these cases where the property was located .near railroad stations with livery stables convenient and the use of automobiles was unnecessary. Mr. Fowler swears that automobiles are necessary; Mr. Joyce swears that they are not and the city of New York objects on the ground that they arenot necessary. The statute provides that expenses to be allowed shall be necessary. The Revised Statutes (1 R. S. chap. 12, tit. 4, § 3, subd. 9) in fixing what shall be county charges, provides as follows: “ The moneys necessarily expended by any county officer in executing the duties of his office, in cases in which no specific compensation for such services is provided by law.” The Court of Appeals held (People ex rel. Hall v. Supervisors of N. Y., 82 N. Y. 473, 475, 476), where the question was whether certain moneys were “necessarily expended ” within the intent and meaning of that statute, that “ The import of the words ‘ necessarily expended ’ is sufficiently evident, when we consider the purpose for which they were inserted, and the nature of the subject to which they are applied. They relate * * * to the necessity of the expenditures, having reference to what is due to the ppblic and the law, in the efficient and faithful discharge of official duty. * * * In such a connection, expenditures are to be deemed necessary within the plain intent of the statute, when, as in the present case, they are not only needful and proper — as contradistinguished from such as are needless and improvident—but also reasonable, appropriate and customary in the discharge of the particular official duty.” (See, also, cases there cited.) Applying that rule laid down by the Court of Appeals to the statute here and the nature of the work which this commission was called upon to do, I think the court will have no trouble in holding that such expenditures for automobiles were not “necessary expenses” within the meaning of the sections providing for the payment of the necessary traveling expenses of the commissioners. The usual and ordinary method of travel from Kingston, which is where most of the sessions of the commissions were held and where the courthouse is, would be by train to one of these stations on the Ulster and Delaware railroad and then by livery rig to the particular parcels sought to be inspected. That is the ordinary, natural method of travel. Automobiles were not in common use in Ulster county in 1909 and are not now. These commissioners receive large pay from the city of New York, considering the amount of work done. They have already received §18,855 for compensation on three reports. In addition they have been allowed two comparatively large bills, each for traveling and other expenses, on two reports prior to this one, for reporting on forty-one parcels of land, six of which parcels were reported worth §10 each. This commission makes numerous reports (three including only forty-one parcels) including only a small number of parcels in each report, which apparently has been discovered to be the way to extract the largest amount of compensation from New York city for the average number of fifty parcels of land that are contained in each section allotted to each commission. Having been allowed large compensation for their services, this commission should not include large expenses, unnecessary expenses, and ask this court to allow them against the city of New York. The city of New York should not be treated as a conquered province or as a prey to the spoiler simply because it is wealthy. The city of New York is not the client of this commission, nor would any Kingston lawyer, if directed to come and see his client in the Ashokan region, go there in an automobile at §25 per trip, but would go by train in the usual, ordinary, customary way. The city of New York is simply the petitioning municipality here which has to pay the expenses of condemnation and should be treated no differently from any other petitioning municipality, as all litigants are equal before the law and the courts. This charge for automobiles is not by any means the only expense allowed these commissioners on this report. Commissioner Fowler was allowed §93.85, which included at least three trips up the Ulster and Delaware railroad, I assume for inspection of these same parcels; Commissioner Scanlon §120 40 for traveling and other expenses, but which are not itemized, so that the court cannot determine if any of it is for traveling up the Ulster and Delaware railroad to the parcels in question, and Commissioner Nicoll for traveling and other expenses, $134.16, some oí which were for travel on the Ulster and Delaware railroad. It is stated in the affidavit of one of the commissioners that prior to "some time in the month of July, 1909,” the bills for automobile services were made out and rendered to the assistant corporation counsel, at which time, i. e., the month of July, 1909, " word went out informally that thereafter the automobile ownersand garage managers would render their bills to the Commissioners, who would make the charges for such cars matters of disbursements, as they would hotel bills and railroad fares.” He further alleges that “no notice was given nor was it intimated that the City of Hew York would object to the payment by the City of Hew York for such automobile service,” and that he did not know until some time during the winter of 1910 that such automobile charges would be objected to. It would seem that the fact that the assistant corporation counsel would not sanction these charges or take charge of them himself in July was a fair notice to the commissioners that they must rely upon the statute and a compliance therewith for their disbursements as well as for their compensation. The court or a justice thereof and not the corporation counsel are to allow bills for necessary expenses. There are twenty-six of these automobile trips charged, of which only five are included in “sometime in the month of July, 1909,” the rest of them being later than July. There were in this report only seventeen parcels passed on, six of which the commission has found worth only $10 each, which, of course, could not have required a great amount of examination, leaving practically twenty-six automobile charges, amounting to §490, for the inspection of eleven parcels of land a few miles from Kingston. Where commissioners charged with a public duty are appointed as here and a limit put to the kind of traveling expenses as is shown by the statute here, the court should confine those commissioners to the kind of traveling expenses sanctioned by the statute. In my opinion, the fact that attention was called by the assistant corporation counsel to the fact that some objection was being made to the automobile bills should have put the commissioners on their guard to comply with the statute rather than to have them continue unauthorized and unnecessary expenditures. I think that the court should not stretch the statute to hold that " necessary traveling expenses” include that which clearly is not necessary. (See Matter of Bensel [Ashokan Reservoir, Sea. No. 13], 124 N. Y. Supp. 716.) It follows that the order so far as appealed from should be reversed, with costs and disbursements. 
      
       See R. S. pt. 1, chap. 12, tit. 4, § 3, subd. 9 (1 R. S. 385, 386); revised by County Law (Gen. Laws, chap. 18; Laws of 1892, chap. 686), § 280, subd. 9, as amd. by Laws of 1906, chap. 74; now County Law (Consol. Laws, chap. 11; Laws of 1909, chap. 16), § 240, subd. 9.— [Rep.
     