New York, West Shore and Buffalo Railway Company agt. Thorne. SUPREME COURT. In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, appellant, agt. THOMAS P. THORNE, DWIGHT E. HEMINGWAY and others, respondents. Railroads - Proceedings to take lands — Right of company to discontinue — Practice as to such discontinuance - Code of Civil Procedure, sections 1358-2240. Where proceedings are instituted by a railroad company, under the laws of this state, to acquire title to land, and after a report by commissioners making their award, and before confirmation, the railroad company moves for leave to discontinue and abandon the proceedings, it is within the legitimate power of the court in granting it to annex such terms to go with the favor as, under the circumstances, justice and fairness to the parties require. The terms upon which the motion should be granted is within the discretion of the court. While the provisions of the statute permitting extra allowance do not apply to special proceedings, and such allowance cannot be made under an order giving costs, but in such case the limitation to those for similar services, &c., in actions, controls, yet that restriction has no application on a motion for favor. The court, in granting such motion, is not restricted to taxable costs and disbursements as a condition. Fifth Department, General Term, October, 1884. Before SMITH, P. J., BARKER, HAIGHT and BRADLEY, JJ. APPEAL from order of Monroe special term confirming report of referee, &c. On the petition of the appellant commissioners were appointed in February, 1883, to appraise the damages occasioned by the appropriation by the petitioner for its railway, ninety-nine feet in width, of certain lands of which Thorne was owner, and Hemingway & Co. were his tenants, engaged in the fruit and vegetable canning business. The commissioners heard the testimony and made report, awarding to Thorne $3,500 and to the tenants $2,200. Motion for con New York, West Shore and Buffalo Railway Company agt. Thorne. firmation was denied by the court, with instruction to commissioners to make their report more specific. They convened and made another report, which the court refused to confirm, and directed the commissioners to ascertain and report other damages which the tenants would suffer in the premises. The commissioners reconvened, further testimony was taken and they then awarded to Thorne $3,500, and to Hemingway & Co. $9,397. No motion was made for confirmation of that award, but the petitioner made a motion on 27th June, 1883, for leave to discontinue and abandon the proceedings, and an order was made by the court discontinuing the proceedings, without prejudice to the right of the petitioner to change the line of its road, and directing it to pay the respondents "their reasonable disbursements and counsel fees therein," and referred it to H. V. Howland to hear the proofs and determine the amount of such disbursements and counsel fees, to be paid by the petitioner. The parties appeared before the referee, gave testimony, and he reported that the reasonable disbursements of Thorne were ... That those of Hemingway & Co. were.. That the reasonable counsel fees of Thorne were.. And those of Hemingway & Co.... Making together... $40 00 668 12 700 00 1,000 00 $2,408 12 which, in his opinion, the petitioner should be required to pay. At Monroe special term, January, 1884, an order was made denying the petitioner's motion to amend the order of June 27, 1883, so as to restrict the allowance to respondents to simply costs and disbursements, &c. And the respondent's motion to confirm the referee's report was granted by order made at the same term. From the latter order this appeal is taken, and a purpose expressed in the notice of appeal to bring up for review the intermediate orders referred to. J. M. Davy, for appellants. Brown & Garfield, for respondents. New York, West Shore and Buffalo Railway Company agt. Thorne. BRADLEY, J.-On confirmation of report of commissioners appointed, pursuant to statute, to appraise the damages or compensation to owners, &c., of land sought to be acquired by a railroad company for the purposes of its oad, the rights of the parties became so fixed that the company could not discontinue or abandon the proceedings until the right was given by Laws of 1876, chapter 198 (In re R. & C. R. R. Co., 67 N. Y., 242). At any stage of the proceeding, prior to such confirmation, the company might do so, but this right was not absolute. The proceeding was in the court, and subject to its control in so far that it might deny or defeat the purpose to discontinue, and make it dependent on such conditions as to the court seemed reasonable. Hence it was usual to apply to the court for leave (In re Anthony Street, 20 Wendell, 618; In re Commissioners Washington Park, 56 N. Y., 144; In re Waverly Water-Works, 85 N. Y., 478; reversing 16 Hun, 57). The reason and the rule in that respect are applicable alike to special proceedings and actions (Carleton agt. Darcy, 75 N. Y., 375; Salmon agt. Gedney, id. 482; Brownell agt. Ruckman, 85 N. Y., 648). It follows that the motion was properly made by the company for leave to discontinue the proceeding, and it was within the legitimate power of the court in granting it to annex such terms to go with the favor as under the circumstances justice and fairness to the respondents required. To reimburse them for their reasonable and proper expenses in the proceeding was evidently the purpose of the court, and we cannot say that the order in that respect was not a fair exercise of discretion. The amount of the disbursements and counsel fees, as ascertained and reported by the referee, was a large per centage of the amount involved in the proceedings; but by the testimony taken by him it appears to have been incurred, and not unreasonably. The respondents, Hemingway & Co., had, as they believed, large and important interests involved, which New York, West Shore and Buffalo Railway Company agt. Thorne. required and justified effort and expense, perhaps somewhat unusual. While the provisions of the statute permitting extra allowance do not apply to special proceedings, and such allowance cannot be made under an order giving costs, in such case the limitation to those for similar services, &c., in actions controls (Code Civ. Pro., sec. 3240; R. and S. R. R. Co. agt. Davis, 55 N. Y., 145), that restriction has no application on a motion for favor (Waverly Water Works, 85 N. Y., 478; Brownell agt. Ruckman, Id., 648.) The fact that at the time this motion was made the proceedings had not reached completion and no rights had vested under them in respect to the land or compensation, is not important for the purposes of the question here, nor is it important that the company might have entered an ex parte order of discontinuance without any application to the court, or do it by notice without order; if that be so (4 Hun, 313), that would not take from the court the power, upon motion, to assume control of the proceeding, and declare the discontinuance thus sought to be produced ineffectual, and restore it for the purposes of the proper protection of the other party to the proceeding (Carleton agt. Darcy, 75 N. Y., 375). The determination of Watson agt. New York, W. and B. Railway Company gave nothing new to the rule or practice in such cases. There the discretion exercised by the special term was sustained and its order affirmed (30 Hun, 649). Upon the notice of appeal, the appellant is permitted to bring up the intermediate order for review (Code of Civil Pro., sec. 1358). But it may be questionable whether, after voluntarily proceeding under the order of discontinuance upon the terms there prescribed, and of the reference, and taking the benefits of the order, the appellant has not waived the right to review that order (Arbsdell agt. Root, 3 Abb., 142; Radway agt. Graham, 4 Abb., 468; People agt. R. & S. L. R. R. Co., 15 Hun, 188; Strong agt. Jones, 25 Hun, 319). In the view taken of the case it is unnecessary to determine VOL. I 25 Rogers agt. Mutual Reserve Fund Life Association. that question and we do not give it consideration. The intermediate orders are within the properly exercised discretion of the special term; and the order confirming the report of the referee should be affirmed, with ten dollars costs and disbursements. All concur. SUPREME COURT. LORENZO B. ROGERS agt. MUTUAL RESERVE FUnd Life ASSOCIATION. Assessment insurance - Lapsed certificate-Failure to present claim-Code of Civil Procedure, section 516—Cases where the court may require a reply. In an action against an assessment insurance company, brought by a beneficiary to recover on a certificate of membership, where the defendant's answer alleged new matter, i. er, the making and non-payment of an assessment: Held, that, under section 516 of the Code of Civil Procedure, on motion of defendant's counsel, the court will require the plaintiff to reply to the new matter set up in defendant's answer. Brooklyn Special Term, February, 1885. THIS action was brought to recover $10,000 on a certificate of membership, issued to Edward B. Rogers by the "Mutual Reserve Fund Life Association," of New York. The plaintiff was beneficiary named in the certificate of membership. The defendant's answer alleged that by the terms of the application the constitution and by-laws of the association were made a part of the certificate, and that by the terms of the certificate and by the constitution and by-laws it was provided that if a member shall neglect to pay any dues or mortuary assessment for more than thirty days from the date of notice to pay, then the membership should at once cease and determine, and the certificate be null and void, and that a notice addressed |