Opinion
Argued February 13, 1928
Decided February 21, 1928
Appeal from the Supreme Court, Appellate Division, Second Department.
Arthur I. Strang for appellant.
Henry R. Barrett, Charles H. Peck and Francis J. Morgan for respondent.
Subdivision 2, section 16 of the Condemnation Law (Cons. Laws, chap. 73) provides for costs and additional allowance in condemnation proceedings. It is headed: "Offer to purchase; costs; additional allowance."
It reads: "* * * If the compensation awarded shall exceed the amount of the offer with interest from 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 cost of the proceeding, to be 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 the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded."
This provision covers all the costs and allowances which may be awarded under the circumstances stated. The five per cent additional allowance which may be granted in the discretion of the court is not limited by sections 1513 and 1514 of the Civil Practice Act. ( Matter of Simmons, 208 N.Y. 69.) The costs of the proceeding are limited to the rate allowed the defendant in an action in the Supreme Court. Here is a specific reference to the Code provision which fixes costs. In no other way can the amount be determined. As to the additional allowance, however, no reference is made to proceedings in the Supreme Court or to the Civil Practice Act or any other provision of law. The limitation is "not exceeding five per centum upon the amount awarded." While uniformity in practice may be desirable it cannot be accomplished through the courts in the face of positive legislation. (See Matter of Scherrer, 206 App. Div. 734; Matter of People v. Johnson Co., 219 App. Div. 285; Matter of City of Rochester v. Cohen, 246 N.Y. 551.)
The court is not obliged to give an additional allowance, or if it make an allowance, need it be the full five per centum. In no instance can it exceed five per centum but it may be less or nothing at all in the discretion of the court which is to be exercised according to the circumstances. When it is given, however, the allowance is to be figured upon the award and not upon the award plus the interest.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Ordered accordingly.