Manhattan Ry. Co. v. Klipstein , 91 N.Y. Sup. Ct. 579 ( 1895 )

FOLLETT, J.

In January, 1893, the plaintiff began this proceeding under chapter 23 of the Code of Civil Procedure to acquire certain street easements for the use of the plaintiff, without having previously made a written offer to purchase the property, sought to be acquired, at a specific price. The defendants interposed am swers denying certain allegations in the petition, and setting up new matters in defense, and the issues joined were, by an order, referred to a referee to hear and determine. The defendants appeared before the referee, and objected to proceeding before him, on the ground that he was disqualified from acting as a referee for reasons then stated. The referee overruled the objections, and the defendants withdrew, but the proofs of the plaintiff were taken, and there: after the referee reported in favor of the plaintiff upon the issues referred to him. The defendants moved to set aside the report, and the plaintiff for an order appointing commissioners. The defendants’ motion was denied, and the plaintiff’s granted. In August, 1893, the commissioners awarded the defendants Murphy and McCormack $62,500, and the defendant Klipstein $9,250. The defendants moved for a confirmation of the report of the commissioners, and for an additional allowance of costs, which was decided January 17, 1894, the report being confirmed and an additional allowance denied. The court, on deciding the motion, said:

“The awards in this proceeding, to my mind, are extremely liberal, under the proofs. I cannot adjudge them excessive, under the circumstances, the commissioners having facilities for weighing evidence superior to those of the court. An extra allowance of $1,800 was granted in the equity suit. None should be given here. The motion to confirm the report is granted, and for an extra allowance denied. Orders to be settled on two days’ notice."’

Afterwards the defendants made a second motion for an additional allowance, which came on to be heard November 21, 1894, and an order was entered denying the motion upon the ground that a previous motion for the same relief was made by the defendants, and denied January 17,1894. From the order of November 21,1894, the defendants appealed, but they have not appealed from the order entered on the decision of January 17, 1894. The second motion, having been made without leave of the court, was irregular, was rightly denied, and the order entered thereon should be affirmed, with costs.

VAN BRUNT, P. J., and O’BRIEN, J., concur in the result.