Opinion
January 29, 1982
Appeal from the Supreme Court, Niagara County, Marshall, J.
Present — Simons, J.P., Callahan, Denman, Moule and Schnepp, JJ.
Judgment modified in accordance with memorandum, with costs, and, as modified, affirmed, with costs to defendant, in accordance with the following memorandum: The trial court erred in denying defendant's application for an extra allowance of 5% as permitted by subdivision 2 of section 16 of the Condemnation Law (subject matter now at EDPL 701) based upon its finding that the case was neither difficult nor extraordinary. The allowance is authorized to permit an owner to be reimbursed for the expenses which he has incurred in establishing value and to receive full indemnity for his property ( Matter of Dodge v Tierney, 40 A.D.2d 936 and cases cited therein) and the moving papers are sufficient to warrant such an allowance in this case. The judgment should be modified to direct plaintiff to pay an extra allowance of 5% of the award to defendant. Simons, J.P., Callahan and Denman, JJ., concur. Moule and Schnepp, JJ., dissent and vote to affirm the judgment.