Citation Numbers: 12 Abb. Pr. 317
Judges: Ingraham
Filed Date: 8/15/1861
Status: Precedential
Modified Date: 1/12/2023
—In this case the report was confirmed, and the taxation of costs disallowed. A motion was made for a retaxation of costs, which is still undecided. Subsequently a stay of proceedings was granted, to allow an appeal to the general term.
Either the proceeding is completed before the judge at special term by a final decision, or there can be' no appeal. I am at a loss to see how the taxation can be reviewed after confirmation of the report. The costs and expenses are to be included with the damages, and assessed upon the owners of the property. Such assessment has been confirmed, and if the amount of costs is reduced, the assessment should also be reduced; otherwise the parties assessed might be compelled to pay a larger sum for damages than the law allows.
The right to appeal in these cases from special term has always been doubted; and the decision of the general term of this district, in the Bowery Extension Case, appears to be conclusive upon this question, until the same is reviewed by the general term.
If there is a necessity for reviewing the taxation of costs in these cases, it seems to me necessary to do the same before the report is confirmed. If the costs are materially reduced, the report should be sent back to the commissioners for a like reduction—so that no greater sum shall be. assessed than is to be expended.
■ The motion to vacate the stay of proceedings must be granted.