Opinion
December 2, 1910.
William McM. Speer [ Archibald R. Watson with him on the brief], for the appellants.
Charles H. Lovett, for the respondents.
This appeal concerns a fourth separate application to tax commissioners' fees in the matter of acquiring certain real estate pursuant to chapter 724 of the Laws of 1905. When the statute (§ 32) provides compensation it means an equivalent for work done. And, therefore, the court should look into the work done and the time properly required for the doing of it. The statute does not recognize a per diem allowance, and there is no reason that requires the adoption of such a standard. Certainly the compensation should not be increased because the commissioners consumed some parts of many days in the doing of work that might be completed in but a few days, unless circumstances beyond the control of the commissioners required such a division of their labors. Rather the court should incline to increase the compensation when the work was done by devotion throughout a day in disregard of all other matters and for the additional reason that such dispatch is a benefit to the city.
The compensation may be entirely proper, but we think that the present record is too meagre and too indefinite to justify the action of the Special Term. A detail of the mere number of sessions held, without particulars of the time actually and necessarily consumed thereby, is not sufficient, nor is a statement in the minutes that at a particular session a witness or several witnesses testified, or even testified at length. Either the commissioners should have shown the time actually and necessarily consumed in their sessions, or should have submitted their full minutes as an indication thereof. Nor is it difficult to submit an estimate of the time consumed by them, if any, outside of their sessions, but about this business, as well as a statement of the character and nature of such services. We are not cited to any provision of law that forbids the separate application as to matters completed and then dealt with in a distinct and separate report. Such practice we are informed is approved by this court in its Third Department, and we see no reason to differ. (See Matter of Bensel [ Ashokan Reservoir, Sec. No. 16], 138 App. Div. 662.) If an allowance is determined solely by the criterion of an equivalent for work done, it is a thing in itself and should have no bearing in relation to the compensation for any other work.
For these reasons we feel constrained to reverse the order, without costs, and to remit the matter to the Special Term to determine the compensation.
HIRSCHBERG, P.J., WOODWARD, BURR and THOMAS, JJ., concurred.
Order reversed, without costs, and matter remitted to the Special Term to determine the compensation.