Citation Numbers: 23 N.Y.S. 544, 52 N.Y. St. Rep. 10
Judges: Handin
Filed Date: 3/4/1893
Status: Precedential
Modified Date: 1/13/2023
It appears the proceedings were instituted in December, 1892, to condemn the lands referred to in the two proceedings, amounting to about 153 acres. It appears that the defendant owned in that vicinity about 6,000 acres in township 1, and 12,000 acres in township 7, which are alleged to be affected by reason of the construction of the plaintiff’s road along the line •occupying a distance of some 11 miles across the lands. There is a stream called the “North Branch” of the Moose river in the vicinity of the location of the road. Sundry questions were apparently raised upon the hearing in respect to the magnitude of the damages sustained, by the defendants by reason of appropriating the lands, needed by the plaintiff for the construction of its road. It appears from the papers and affidavits produced that answers were served and issues joined and a reference was had to W. S. Andrews, Esq., t-o take proofs in respect to the issues raised by the answers, and that his report upon those issues, after hearing the evidence,, was favorable to the plaintiff. Thereafter commissioners were appointed, and they proceeded to investigate the •questions relating to the extent of damages which the plaintiff should pay as a condition of acquiring the lands sought in these proceedings for the purpose of its railroad. Preliminary examination by the commissioners and the counsel of the parties was had in the early stage of the proceedings> obeying that provision of the statute which requires the commissioners to. view the premises; and it is said in an affidavit produced that that preliminary •examination occupied some two days, and thereafter proceedings were adjourned, and evidence taken at considerable length, occupying, it is said, six days, and that in reducing the evidence there •appears to have been 401 pages of type-written matter; and sub•sequent to the taking of the evidence preparations were made for
It must be assumed here, from the character of the commissioners, that careful attention was given to the evidence, and a just solution made of the questions submitted to the commission. Therefore it is to be assumed that the award is a just award, and the motives of the parties on either side antecedent to that are no£ to be considered on the question which is now submitted to the court, as to whether there should be an extra allowance or not, and, if so, what that allowance should be. Incidentally, the learned counsel for the plaintiff calls attention to the circumstances that appear from the answers that were interposed, that minor defenses were suggested, which proved unavailing before the referee, and that the plaintiff was successful upon those issues. Some force must be given, perhaps, to that suggestion, but no more force than simply, perhaps, to intimate that what took place before the referee is not to be considered upon the question of an extra allowance. The statute seems to have provided that, when these parties found themselves differing, failing in a negotiation which perhaps was reasonable on one side and unreasonable on the other, a formal offer might be made, analogous to the offer made in an ordinary action, and that then there is a provision in the statute that, if the party making the offer is successful in the hearing, why, he may obtain costs,, and throw the costs on the other party. In this case the offer was inadequate. It seems to have been only about one-fifteenth of what was actually recovered. It must be assumed, therefore, that the beneficial provisions of the statute relating to the provisions as to an offer are unavailing to the plaintiff on this occasion. We come, then, down to the question of whether or not this is a proper case for extra allowance, in the light of the facts and circumstances that are presented by the affidavits and proofs that are submitted. Since the last revision of the condemnation law these applications have not been very numerous. I have had occasion to act once or twice under section 3372 of the Code of Civil Pro
“If tho compensation awarded shall exceed the amount of the offer, with interest at the time it was made, or if no offer was made, the court shall in the final order direct that the defendant recover of the plaintiff the costs of the proceeding, to he taxed by the clerk at the same rate as is allowed of course to the'defendant when he is the prevailing party in an action in the supreme court, including the allowances for proceedings before and after notice of trial, and tire court may also grant an additional allowance of costs, not exceeding five per centum upon the amoimt awarded.’’
Tinder this provision it is to be observed that the defendants are entitled by the statute to a taxed bill of costs. In that taxed bill they are entitled to proceedings before and after notice of trial; in short, about the same provision as is made in an ordinary action. How, in considering the latter part of the statute just quoted, “and the court may also grant an additional allowance of costs, not exceeding five .per centum upon the amount awarded,” it is proper to call to mind some adjudications that have been made under a somewhat similar statute authorizing allowances of costs. It has been said that this provision is not to be applied as punitive by reason of improper motives on the part of litigants; neither is it to be applied in sympathy with the party who has had a long and tedious litigation; but it is to be considered rather in the light ,.of a statutory provision for • indemnity. I had occasion a good while ago to consider the sections of the Code that are analogous to this in a case that presented very exceptional features. It was an action where the amount involved was $30,000, and there had been success on one side and defeat on the other, and it was said the defeat was very severe; that it overruled supposed equities, ■and that it was a defeat which was on people who could ill afford it; and counsel, who were then before the court,—none other than-two gentlemen who have since been judges of the court, Judge iStoxon and Judge Kennedy,—argued the motion which - was submitted, and I took pains to look up the statute, and the cases applicable to it, and write an opinion, which I have put my hand on, and I find in that opinion some things that are applicable here, and .therefore I turn now to Burke v. Candee, 63 Barb. 552. In that case it was held as follows:
“An additional allowance is made by way of an idemnity to the party succeeding in the litigation. The court must fix the amount to be allowed, subject to the limitation in the statute that the maximum shall not exceed five per cent, ‘on the amount of the recovery or claim or subject-matter involved;’ the sum will depend upon the proper deductions from the proofs submitted as 1o the indemnity needed for actual expenses in the action, necessarily or reasonably incurred beyond the taxable costs allowed by statute to the prevailing party.”
This case has been referred to approvingly in Gooding v. Brown, 21 Wkly. Dig. 47; Tolman v. Railroad Co., 31 Hun, 403; and Delcomyn v. Chamberlain, 48 How. Pr. 413; therefore, the rule seems to be well established. Applying the principle there laid down to the facts before the court on this occasion, the inquiry is, what is a fair compensation—what is a fair indemnity—to the party who