#### Matter of the Application of The City of Buffalo, to Acquire Lands in Fee for the Purpose of Widening Perry Street.

(Supreme Court, Erie Special Term,

February, 1913.)

Municipal corporations — city of Buffalo — condemnation proceedings to acquire land for street purposes.

In a proceeding brought under the charter of the city of Buffalo, • to acquire land for street purposes, which provides that “ upon the confirmation of the report of the commissioners the Common Council shall ascertain the amount- of money required to pay the compensation awarded and the cost of the proceedings,” the “ cost ” contemplated is the incidental expense that the city lias incurred for maps and surveys, expert witnesses, etc., and the court has no legal power to make an allowance of costs to the property owners.

Motion for allowances of costs by property owners.

*291Henry W. Killeen, George P. Keating, Henry W. Hill, Harry D. Williams, representing several owners.

Jeremiah J. Hurley, assistant city attorney, opposed.

Pooley, J.

The application for allowances must be denied. In proceedings brought under the Condemnation Law, provision is made, where, in a proper case, costs and additional allowances may be awarded. There seems to be no reason why an owner, whose property is taken from him against his will by the sovereign power of the state, should not be entitled to costs, and in proper cases to extra allowances, whether his property is taken under the Condemnation Law or under the provision of the charter. The result to the owner may be the same in that he is compelled to give up his property; and I think in this case allowances should be made if authority could be found. But the court has no inherent power to grant costs or allowances, and must look to the statute .-for authority.

The proceedings brought before us is brought under the provisions of the charter of the city of Buffalo, which provides that, *“*upon the confirmation of the report of the commissioners, the Common Council shall ascertain the amount of money required to pay the compensation awarded and the *cosí*of the proceedings.”

This is the only provision applicable here, and is urged by the owners as authority to tax costs, and, assuming that to be established, that the provisions of the Code of Civil Procedure furnish the details as to the amount to he allowed.

The above quotation from the charter cannot be construed to mean that *costs*to the owners are to he awarded. In my opinion, it contemplates the *cost*or expense that the-city has incurred incident to the proceedings, for maps and surveys, for expert witnesses, etc. This cost or expense, if incurred, must be paid by the city, hut, for the purpose of reimbursement, must be ascertained and charged to the proceeding.

Counsel for owners cite the case of Dexter & Northern R. R. Co. v. Foster, 142 App. Div. 240, as authority for *292the allowance of costs; hut this case was brought under the Condemnation Law, which, as stated, provides specifically for such allowances in a proper case. I am unable to find any case where costs have been awarded to owners whose lands had been taken by the city of Buffalo for street purposes, and in recent cases, notably the extension and opening of Morgan street, a like application was made and denied, and the order affirmed by the Appellate Division. Matter of City of Buffalo, 137 App. Div. 929.

In Matter of City of Brooklyn, 148 *N.*Y. 107, Judge Andrews says: “We fully agree with the opinion of the judge .at Special Term that an extra allowance should be made to the appellant for defending the proceedings to acquire its property, provided the court had power to make such allowance;” but finds that the statute under which the proceeding was taken made no provision for costs and allowances. The position of the owners in that case was similar to that of the owners here, and the court points out that it is impossible to apply the provisions of the Code in condemnation proceedings.

In Matter of Rapid Transit R. R. Comrs., 197 N. Y. 81, 110, Judge Vann applies the doctrine of the Brooklyn case, and says: “The statute provides for the payment of the fees of the commissioners and their necessary expenses, and for the compensation of counsel designated by the corporation counsel to protect the interests of the city, hut it does not, as we read it, either expressly or impliedly, provide for the payment by the city of any part of the expenses incurred by claimants for counsel or otherwise * * *. The counsel for the property owners are not mentioned.”

So here, the legislature, in its wisdom, has seen fit to omit any reference to the expenses of claimants in the charter provision; and, although the case warrants the awarding of costs and allowances, none can be made.

Ordered accordingly.