County of Westchester v. Wakefield Park Realty Co.

147 A.D. 655, 132 N.Y.S. 663, 1911 N.Y. App. Div. LEXIS 2940

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1911
• Status: Published

Opinion

Woodward, J.:

This is a condemnation proceeding, and the only question presented upon this appeal from an order denying an application for costs in each case separately tried is, whether the court had power to grant the award asked for, the motion having been denied upon the ground that the court was without power in the premises. We are of the opinion that the learned court at Special Term has fallen into error in this matter, and that the law .is well established that, where the question at issue is as to the amount of compensation to be paid, each separate parcel is to be regarded as a distinct action, and costs.are to be awarded in the same manner as though a separate proceeding had been commenced against each parcel. This was decided, in line with the authorities cited, in Dexter & Northern Railroad Co. v. Foster (142 App. Div. 240) and Matter of City of New York (129 id. 929). The granting of a privilege to the plaintiff to bring in all of the owners whose property is to be acquired in a single proceeding ought- not to deprive the individual defendants of their right to have that ¡just compensation which the Constitution (Art. 1, § 6) requires,, and which contemplates that the plaintiff shall pay to the defendant the cost sustained by him in defending his rights, except in those cases where the defendant fails to secure an award equal to the amount which has been offered him for the premises.

The order appealed from should be reversed, and the matter should be remitted to the Special Term for adjustment in harmony with this opinion.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Order reversed and matter remitted to the Special Term- for adjustment in accordancé with opinion.