#### In the Matter of Laying Out, Opening and Extending School Street of the City of Yonkers, from Nepperhan Avenue to Elm Street and Palisade Avenue. (Proceedings 1 and 2.) The City of Yonkers, Appellant; George E. Merritt and Others, Respondents.

Second Department,

April 24, 1914.

Municipal corporations — street opening, city of Yonkers — costs — allowances—stare decisis.

Statutory authority must be found to justify the court in awarding either costs or allowances in a special proceeding for the condemnation of land for a public improvement.

The court may allow taxable costs to landowners in the city of Yonkers whose lands are condemned for a street opening, pursuant to chapter 452 of the Laws of 1908. Although said statute is silent as to costs, they may be awarded under seetidh 8240 of the Code of Civil Procedure.

But extra allowances in addition to costs are not authorized.

A decision by a divided court is binding, under the doctrine of *stare*decisis, until reversed.

Appeal by The City of Yonkers from two orders of the Supreme Court, the first made at the Dutchess Special Term, the second at the Westchester Special Term, and both entered in the office of the clerk of the county of Westchester on the 30th day of December, 1912, and on the 5th day of December, 1913, respectively.

*Thomas F. Curran, Corporation Counsel, for*the appellant.

*Theodore E. Terrell,*for the respondent George R. Merritt.

*Thomas M. Smith [Henry Martyn Baird, Jr.,*with him on the brief], for the respondent Antonio Del Checcolo.

*F. X. Donoghue,*for the respondents Yonkers Brewery and Underhill Land and Improvement Company.

*William A. Walsh, for*the respondent Charles G. Bechle.

*Gabriel Reevs,*for the respondent Annie E. Young.

*159*James M. Hunt,*for the respondent George T. Kelly.

*A. S. Oglesby [ Woodson R. Oglesby*with him on the brief], for respondents, owners of parcels 1, 2, 5, 7 and 8.

Burr, J.:

On March 13, 1912, the above-entitled special proceeding was instituted to lay out, open and extend School street from Nepperhan avenue to Elm street and Palisade avenue in the city of Yonkers, and on March 30, 1912, commissioners of estimate were appointed. Subsequently (the date of their report is not given) the commissioners submitted their report as to five of the damage parcels affected by said proceeding, and on December 14,1912, this report was confirmed. Upon the same day an order was made granting to the attorneys for the owners of four of such damage parcels costs of the proceeding, and in addition thereto an allowance of $1,500. To the attorneys for the owner of the fifth parcel costs were given and an allowance of $750. On June 9,1913, the commissioners of estimate filed a second report as to twenty-four other parcels shown on the damage map, and on the 14th day of June, 1913, an order was entered confirming this report. Subsequently, and on November 24, 1913, an order was entered allowing taxable costs to the several attorneys who appeared for the owners of such damage parcels, and in addition thereto allowances, none of which, however, exceeded five per cent of the amount of the respective awards. An appeal was taken from each of these orders.

There is nothing to show that if the power to award costs and allowances existed the discretion of this court at Special Term was unwisely exercised. The question to be considered, then, is solely a question of power. Statutory authority must be found to justify the court in awarding either costs or allowances in a special proceeding for the condemnation of land for a public improvement. *(Rensselaer & Saratoga R. R. Co.*v. *Davis,*55 N. Y. 145; *Matter of Simpson,*26 Hun, 459; *Erie & Jersey Railroad Co.*v. *Brown,*123 App. Div. 655; *Matter of City of Brooklyn,*148 N. Y. 107; *Matter of Rapid Transit R. R. Comrs.,*197 id. 81; *Matter of Low,*208 id. 25.) The act under which this proceeding was instituted was entitled *160“An act -to supplement the general laws relating to the government of the city of Yonkers, and to revise and consolidate the local laws relating thereto.” (Laws of 1908, chap. 452.) It is conceded that this statute is silent as to costs and allowances in proceedings of this character, but this court has decided that in a proceeding under the provisions of this act to acquire land for the purposes of laying out, opening and extending a public street there was authority under the provisions of section 3240 of the Code of Civil Procedure to award costs to the property owner upon the confirmation of the report of the commissioners. *(Matter of Saw Mill River Road,*152 App. Div. 788.) Although that decision was by a divided court, under the doctrine of *stare decisis*it is controlling upon this court until reversed, and there has been no such reversal. *(Moore*v. *City of Albany,*98 N. Y. 396, 410.) But upon the question of allowances this court is not committed, and we can find no statutory authority for the granting of the same. Section 3240 of the Code of Civil Procedure, referred to in the decision in *Matter of Saw Mill River Road (supra),*relates only to costs. The provision respecting allowances in addition to costs in special proceedings is found in a subsequent section. (Code Civ. Proc. § 3253.) That section enumerates the special proceedings in which such allowance may be made, and a proceeding of this character is not therein specified. *(Matter of Simmons,*208 N. Y. 69, 75.)

The orders appealed from must, therefore, be modified by striking out therefrom all provisions therein contained granting allowances in addition to costs to the several persons whose property has been acquired for the purpose of this improvement, and as so modified such orders must be affirmed, without costs.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Orders modified by striking out therefrom all provisions therein contained granting allowances in addition to costs to the several persons whose property has been acquired for the purpose of this' improvement, and as so modified affirmed, without costs.