New York, Ontario & Western R. Co. v. McBride

45 Misc. 516, 92 N.Y.S. 31

• Court: New York Supreme Court
• Decided: December 15, 1904
• Status: Published

Opinion

Gaynor, J.:

In a proceeding for the condemnation of real property, if a defendant interpose an answer to the petition (Code Civ. Pro. § 3365) a trial of the issues thus raised must be had. If judgment be given the answering defendant thereon, he is entitled to costs against the plaintiff, i. e., costs before and after notice of trial and a trial fee (§ 3369). If judgment of condemnation be given, the plaintiff is entitled to like costs against the answering defendant (§ 3372, last clause).

The foregoing provisions relate to the “ trial ” only, i. e., the trial of the issue raised by an answer to the petition. That is the only “ trial ” that is had in a condemnation proceeding. The word does not relate to or designate the hearing before the commissioners at all.

But costs are also allowed upon the hearing before the commissioners. If no offer has been made by the plaintiff, the defendant recovers costs without regard to the amount of the award. If such an offer has been made, he recovers costs only if the award be larger than the offer; and the costs allowed are costs before and after notice of trial and a trial fee (§ 3372).

Judgment having been given against the defendants on trial of the issue raised by their answer, the plaintiff is entitled to trial costs, and no offer having been made by the plaintiff, the defendants are entitled to costs upon the hearing before the commissioners.

Ordered accordingly.