#### In the Matter of the Application of Mary H. Bradley, Appellant, for the Appointment of Commissioners to Assess the Damages, etc., by Reason of the Change of Grade of the Street by the Village of Fort Edward, Respondent.

Third Department,

May 3, 1911.

Eminent domain— change of grade in village street — costs.

The costs allowed hy section 159 of the Village Law to a landowner who has been given an award in a.px'oeeeding to determine the compensation to which he is entitled on account of the change of grade of a street, are within the discretion of the court under section 3240 of the Code of . Civil Procedure.

As section 159 of the Village Law requires all proceedings subsequent to the appointment of commissioners in such proceedings to be taken in accordance with the Condemnation Law, a landowner who has been awarded damages on account of a change in the grade of a street is, by virtue of section 3372 of the Code of Civil Procedure, entitled to recover costs of the proceeding subsequent to the appointment of commissioners to be taxed by the clerk at the same rate as is allowed, of course, to a defendant when he is the prevailing party in an action in the Supreme Court where no offer to settle or compromise the claim has been made.

The petitioner’s right to costs awarded by the final order in’a proceeding to determine the compensation to which he is entitled on account of a change of grade in a village street is.not affected by an order denying his motion for a retaxation after the costs allowed have been reduced by the clerk, if there be no claim of mistake or omission.

Appeal by the petitioner, Mary H. Bradley, from an order of the. Supreme Court, made at. the Clinton Trial Term and entered in the office of the clerk of the county of "Washington on the. lTfch day of January, 1911,. denying the petitioner’s motion for a retaxation of costs.

The proceeding was instituted under section 159 of the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64) for the appointment of commissioners to determine the compensation to which the petitioner is entitled on account .of the change of grade of a street in the village of Fort Edward. No offer to settle or compromise the.claim was made. An answer was served butwas withdrawn before trial, and three commissioners were appointed to ascertain the compensation to he made to the peti*50tioner. The award of the commissioners was set aside and new commissioners were appointed, who filed a report awarding to the petitioner the sum of $750. The report of the commissioners was confirmed. The order confirming the report provided that the petitioner should “recover $276.56 costs and disbursements in this proceeding to be taxed by the clerk against the said village of Fort Edward.” The Costs were taxed without notice at the sum'-of $276.56, and notice of retaxation was given. Upon the retaxation the clerk struck out the following items: Costs before notice of trial before commissioners, $25; costs after notice and before trial before commissioners, $Í5; commissioners’ fees, first commission, $156.06. ' The petitioner thereafter moved for a new taxation of costs and the motion was denied, and from the order denying the motion this appeal is taken.

*Fred A. Brail,*for the appellant.

*Wyman S. Fascom,*for the respondent.

Sewell, J.: -

The only provision relating to costs in this proceeding is contained in section 159 of the Village Law, and is as follows: “.All proceedings subsequent to the appointment of the commissioners shall be taken in accordance with the provisions of the Condemnation Law, so far.as applicable, except that the commissioners in fixing their award must make an allowance for benefits, if any, derived by the claimant from such improvement. The amount agreed upon for such damages or the award therefor, together with the costs, if any, allowed to the claimant, shall be a charge against such village. Unless the award of the commissioners in favor of the claimant shall exceed the amount of the offer to settle or compromise such claim, he shall be liable for all the costs of the proceeding.”

It is plain from this provision that thb allowance of costs in this case, for all proceedings prior to the appointment of the commissioners; was in the discretion of. the court, under section 3240 of the Code of Civil Procedure. ...

It is also apparent that under the provisions of section 3372 -of the Code, which regulate the costs* in a condemnation proceeding, the petitioner was entitled to recover costs of th% proceeding, subsequent to the appointment of the - commissioners, *51to 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. ' I am, therefore, unable to conceive any reason why the appellant was not entitled to have her costs retaxed by the clerk at $276.56, the amount awarded in the final order in the proceeding.

With respect to the force and effect of the order denying the motion for a new taxation it is only necessary to say that it did not affect the* appellant’s right to the costs awarded by the final order. *(Hewitt*v. *City Mills,*136 N. Y. 211.) It was entered upon notice, at the conclusion of the proceeding, and was a judicial determination of a substantial right. II 1⁄8 true, as the respondent contends, that a court possesses inherent power to correct a mistake or clerical error, but this rule has no application in- a case where there is no allegation, or pretense of a mistake or omission in respect to the facts or the law. It follows that the order of the Special Term should be reversed, and that all the items contained in the bill of costs, amounting in the aggregate to the sum of $276.56, should be allowed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.