
    Matilda Schneider, Appellant, v. The City of Rochester, Respondent.
    
      Additional allowance — a decision that a common council has not power to arbitrarily set aside an awa/rd affords no basis therefor.
    
    Where the common council of the city of Rochester arbitrarily sets aside the report of commissioners appointed in a condemnation proceeding instituted by the city, and in an action brought against the city, by a person to whom the commissioners have made an award, the Court of Appeals decides that the power of the common council to set aside the report is judicial in its nature and cannot be exercised arbitrarily, the plaintiff in such action is not entitled to an extra allowance based on the amount of the award made to her, as the right of the common council to pass upon the report judicially is not affected by the decision.
    The possibility that a money value may incidentally accrue to the successful party from the determination, does not warrant the granting of an extra allowance.
    Appeal by the plaintiff, Matilda Schneider, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 5th day of Janaary, 1900, denying her motion for an additional allowance of costs.
    The motion was denied solely upon the ground that the court-lacked the power to award an additional allowance of costs, as a money value could not be placed upon the subject-matter involved.
    
      Elbridge L. Adams, for the appellant.
    
      Porter M. French, for the respondent.
   Spring, J.:

The plaintiff owned a tract of land in the city of Rochester which the municipality desired to condemn for a street. Commissioners were duly selected and presented their report to the common council awarding to her damages in the sum of $40,000. The statute requires that that body shall then assign a time for hearing objections to the confirmation thereof, and at the time assigned shall hear the allegations of all persons interested, and may take proof in relation thereto from time to time, and shall confirm the said report, or may set the same aside and refer the matter to the same or to new commissioners to be appointed by the said court as before, who shall thereupon proceed as hereinbefore provided. But the common council may set aside said report and abandon said improvement at any time before the final confirmation of the assessment roll hereafter mentioned.” (Laws of 1880, chap. 14, § 179, and the acts amendatory thereto, which is the revised charter of the city of Rochester.) The common council did fix a date for the hearing, but, without any proof being presented, adopted a resolution summarily setting aside such report and referring the matter to new commissioners, and directed the city attorney to apply to the court for their appointment.

A suit in equity was thereupon commenced by the plaintiff to restrain the defendant from applying for new commissioners to reappraise her damages and impugning the right of the common council to set aside the report already filed. After much litigation the case was finally decided by the Court of Appeals in favor of the plaintiff. (160 N. Y. 165.) It is significant, however, in the determination of this motion to note that the Court of Appeals did not decide that the common council lacked the power, after the hearing, provided for in section 179 of the city charter, to set aside the report of the commissioners. It limited its decision to holding that the exercise of this power arbitrarily, without rhyme or reason, was not within the legitimate scope of its authority. As-was said at page 170: “ Thus, the precise point presented is whether, . upon the filing of the report, the common council could set it aside and have a new commission appointed upon its own motion, and without any proof or allegation other than the bare statements of, one of its members and the city attorney that the award was excessive.” Again, the court carefully abstained from maintaining that the common council could not set aside this report after a hearing, saying at page 174: “ Therefore, it is unnecessary to hold that, under no circumstances, could the common council set aside the report on motion of the city and direct an application for the appointment of a second commission. That question we need not now decide. What we do decide is, that, under the circumstances of this case, the common council could not, without other allegations, and sufficient proof, arbitrarily set aside the report of one commission and authorize the appointment of another. So far as we have found any direct authority upon the subject, it seems to sustain the conclusion- we have reached.”

The only question passed upon by the Court of Appeals was the regularity of the method adopted by the common council, and that was held to be an excessive or wanton exercise of the authority vested in it. But, under the decision of the Court of Appeals, the city could bring up in review the report of the commissioners, and, upon a proper hearing, its common council could still vacate that, report, and, as its power is quasi judicial, its determination could-not be disturbed unless there was an abuse of the discretion committed to it. “ The subject-matter involved ” was not the sum awarded, for that was subject to future variation. The effect of the decision was not to entitle the plaintiff to a fixed sum or to the restoration of the land unburdened by the assessment, which presumptively is equivalent to the pecuniary award. The matter of the retention of the award, the selection of the appraisers or the abandonment of the proceedings were still left open unaffected by the decision of the Court of Appeals, except that the common council could not capriciously, and without some facts to justify it, set aside such report.

A very different question would be presented had the Court of Appeals decided that no power was vested in the common council to set aside the report of the commissioners. The effect of the decision then would have been to entitle the plaintiff unqualifiedly to the sum awarded unless the city legislature elected to abandon the proceeding and restore the land to her, which would have stood for the money. The authorities relied upon by the appellant’s counsel would then be pertinent. The victory in the Court of Appeals was a barren one. With the right remaining in the common council to pass upon the report of the commissioners judicially, she must still run the gauntlet of that body, and it appears a rehearing was in fact directed before it.

The action was difficult and extraordinary, and if “ the subject-matter involved ” was susceptible of estimation by a pecuniary value, an additional compensation would be very proper; but the rule is specific that, though a possible money value may accrue incidentally, it does not warrant the granting of an extra allowance of costs to the successful party. (People ex rel. Winans v. Adams, 128 N. Y. 129 ; Husted v. Thomson, 38 App. Div. 315.)

The order is affirmed, with ten dollars costs and disbursements to the respondent.

All concurred; Adams, P. J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  