In re Mayor

24 Misc. 558, 54 N.Y.S. 64

• Court: New York Supreme Court
• Decided: September 15, 1898
• Status: Published

Opinion

Cohen, J.

This is an application for the taxation of costs of the . commissioners appointed herein, and for an additional allowance under the statute. The only question in dispute as to the costs to be taxed is the rate per day which shall be allowed the commis' sioners since January 1, 1898, when the new charter went into effect. Thereby the compensation is fixed at $6 per day. The commissioners claim. $10 per day, the rate fixed by statute in force prior to that time. It seems to me that the per diem fee of $6 only should be allowed. The same question was so decided in a well-considered opinion by Mr. Justice Werner, in Matter of Wilkins Place, etc., Hew York Law Journal, April 28, 1898. The conclusion there reached is approved. Granting of an additional allowance is expressly authorized by statute (§ 998 of charter, Laws of 1897, chap. 37^), ™ cases which are “ unusually difficult or extraordinary.” In accordance with the views expressed in the Matter of Edgecombe Road by the Appellate Division, First Department, reported in Hew York Law Journal, September 7, 1898, I think this, is such a case. The commissioners took the oath of office in September, 1895, and the public hearings and executive sessions continued down to March of the present year. The attendances were over 400. There were 257 distinct parcels. The aggregate amount of awards is $1,031,083.78. These proceedings apply to One Hundred and Forty-ninth street from the Southern boulevard to the Harlem river. That street was first legally opened to a width of sixty feet from the Harlem river to St. Ann’s avenue, and to a width of seventy-five feet from St. Ann’s avenue to the Southern boulevard. By this proceeding the street within the limits indicated was widened to 100 feet. The property considered was diverse, embracing water-front, business, factory and tenement property, the.number of improved parcels being 143. In addition to the foregoing characterization of the nature of the proceeding it may be added that the street was so varied in character that different units of value had to be estab' lished in different blocks, and sometimes in the same block. The improvement was so far-reaching and important that the area of assessment (to the extent of 50 per cent.) was extended to every owner in the Twenty-third ward. Some of the property was from ten to twenty feet below grade, and in some of these instances damage had been claimed and awarded to the owners by the grade commissioners. Unusually difficult questions of law, as well as of fact, grew out of several claims for damage to leasehold property, owing to the fact that while the property vested in the city on the 30th of March, 1896, the possession .thereof has not yet been assumed. Here the problem to be solved was the measure of damages, and the time from which they were to be reckoned as sustained by the lessee. The question of determining what apparatus or machinery was tó be deemed personalty or realty also frequently confronted these commissioners. While these facts made an “ extreme case,” as required by statute and authority, the amount claimed by the cominissioners as additional allowance seems to Ine .excessive. Two thousand dollars to each of them seems to me to be reasonable and just.

Let an order be submitted embodying the above conclusions.

Ordered accordingly.