Matter of Simmons

Werner, J. We agree with the learned Appellate Division in the conclusion that chapter 724 of the Laws of 1905 authorizes allowances for counsel fees to attorneys for property owners who have not appeared, as provided by section 13 of the act, and also to the attorneys for owners who have appeared in the proceedings. We can see no reason for the distinction between the two classes sought to be made by the appellants. The opinion of the court below quite satisfactorily disposes of this branch of the appeal, and renders .further discussion in this court unnecessary. We differ with the learned Appellate Division, however, in its construction of that part of the statute which relates to the amount of the allowances authorized. We think it limits to $2,000 the amoqnt of the counsel fee *73 which may be allowed to any individual owner to whom an award is made, and that the Special Term correctly so decided. In enacting chapter 724 of the Laws of 1905 it was the evident purpose of the legislature to provide an apparently complete system under which the city of New York could secure a much needed additional water supply from the various sources which were thought to be available, and it was doubtless contemplated that large areas of real estate would have to be acquired. The act contains many comprehensive provisions for the protection of the city and the property owners. Among those which are germane to this discussion is section 32. So far as material it provides: “The fees of the commissioners and the salaries and compensation of their employees, and their necessary traveling expenses, and all other necessary expenses, in and about the special proceedings provided by this act to be had for acquiring title or extinguishing claims for damages to real estate, and such allowances for counsel fees as may be made by order of the court shall be paid by the comptroller of the city of New York out of the funds hereinafter provided. * * * Such allowances shall in no case exceed the limits prescribed by section three thousand two hundred and fifty-three of the code of civil procedure.” Section 3253 of the Code of Civil Procedure is as follows: “In an action brought to foreclose a mortgage upon real property or for the partition of real property, or in a difficult and extraordinary case, (where a defense has been interposed in an action), or, except in the first and second judicial districts, in a special proceeding by certiorari to review an assessment under article thirteen of the Tax Law, and the acts amending the same, the court may also, in its discretion, award to any party a further sum as follows: “1. In an action to foreclose a mortgage, a sum not exceeding two and. one-half per centum upon the sum *74 due, or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars. “2. In any action, or special proceeding, specified in this section, where a defense has been interposed, or in an action for the partition of real property, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject matter involved.” And section 3254 of the Code further provides: “But all the sums awarded to the plaintiff, as prescribed in section thirty-two hundred and fifty-two of this act, or to a party or two or more parties on the same side, as prescribed in the last sentence of section thirty-two hundred and fifty-one of this act, and in subdivision second of the last section, cannot exceed, in the aggregate, two thousand dollars Why does section 32 of the Water Supply Act refer to section 3253 of the Code of Civil Procedure ? Obviously for the purpose of fixing the amount which shall be allowed as counsel fees. ' When we scan the language of section 3253 we see that in certain specified cases the courts may grant additional allowances subject to the limitation that they must not exceed five per cent upon the sum recovered. That provision is found in the second subdivision. A step further on, however, brings us to another limitation in section 3254, which is that the allowances permissible under subdivision 2 of section 3253 shall not exceed $2,000. Since this last restriction is contained in another section of the Code, not in terms referred to in section 32 of the Water Supply Act, the question to be determined is whether the allowances to be made under the latter act are to be limited by the provisions of section 3253 alone, or by the terms of that section as modified by section 3254. The language of section 32 of the Water Supply Act is that “Such allowances shall in no case exceed the limits prescribed by section three thousand two hundred and fifty-three of the code of civil procedure,” When we *75 turn to the provisions of this Code section to ascertain what is meant by the “ limits ” prescribed therein, we see that extra allowances are confined to certain specified cases. Mortgage foreclosures, partition suits, difficult and extraordinary cases in which defenses are interposed, and tax certiorari proceedings complete the list. The first subdivision of the section provides only for mortgage foreclosure cases. The second subdivision limits the allowances to five per cent upon the sum recovered, or claimed or the value of the subject-matter. This is doubtless the subdivision of Code section 8258 to which the language of section 32 of the Water Supply Act refers. That is the contention of counsel for the respondents, and upon it they predicate their claim to allowances of five per cent upon the full awards made to their clients. In the Water Supply Act there is no reference to section 3254 of the Code, and there is some force in the argument that if the legislature had intended to apply to the Water Supply Act the limitations of both sections 3253 and 3254 of the Code there would have been a mention of both. But that is only one side of the argument. It is equally pertinent to observe that if the legislature had intended that the allowances should be governed solely by the second subdivision of section 3253, unaffected by the further limitation of section 3254, there was no reason at all for any reference to the Code. In that event a mere statement that the allowances “ shall not exceed five per cent upon the sums awarded ” would have been the simple and natural way of expressing the legislative intent. Then again the use of the plural of “ limits ” seems to indicate that the framers of the act had in mind something more than the single fixed amount of five per cent. It is not a violent assumption that they knew of the limitation of section 3254 upon subdivision 2 of section 3253 and concluded that the two sections must be read together. The obvious purpose of referring to section 3253 was to make it the standard by which to measure *76 allowances in such proceedings as this, and that section cannot be invoked for that purpose without reading into it the language of section 3254. The two sections relate to a common subject. One is the complement of the other. A reference to either naturally includes the other. For all purposes of practice governed by the Oode these two sections have always been regarded as one, and we think the same rule should be applied to all proceedings in which the allowances under special statutes are limited by reference to section 3253. That is at least the safer one of the only two alternatives from which we have to choose. There are doubtless many cases in which an allowance of $2,000 will but poorly compensate counsel, but that is an evil much less to be feared than the possible abuses of a system under which an allowance need have no relation to the value of services. The subject is one which the legislature, in a few simple words, can place beyond the necessity for judicial construction, and so long as the statute remains in its present form we shall feel constrained to hold that no allowance under section 3253 can exceed $2,000. The order of the Appellate Division should be reversed in so far as it reversed the order of the Special Term, and the order of the Special Term should be affirmed, without costs in this court to either party as against the others; the first and third questions' certified are answered in the affirmative and the second in the negative. Cullen, Ch. J., Willard Bartlett, Hiscock, Chase, Collin and Hogan, JJ., concur. Ordered accordingly.