In re Low

Section 62 of the Rapid Transit Act has a proviso for the comptroller’s payment of counsel fees and reasonable expenses incurred by the corporation counsel. “But such fees and expenses shall not be paid until they have been taxed before a justice of the Supreme Court in the judicial district in which said city is situated. ”*

*85Taxation here means an ascertainment and adjustment of a charge. In old English practice, when applied to damages, taxation was cutting down damages by a judge where the jurors had given an excess; so “to tax,” signifies to adjust, adapt, or proportion. (Bouvier’s Dictionary, “Tax.”) It is in this earlier sense that judges are required to pass upon and allow or reduce charges and fees of a coroner’s inquest (Matter of Toepel, 139 Mich. 85), and to tax accounts of a district attorney (Supervisors of Onondaga v. Briggs, 2 Den. 26).

Did the court at Special Term err in refusing to tax the full account of Mr. Pruyn a professional engineer, for examination of buildings on Joralemon street, and for his testimony on three occasions, amounting to $3,416.40, as certified by the corporation counsel ?

It appears that the city had retained Mr. Moss, an expert, at a price of $90 for each house, and then at same terms engaged Mr. Pruyn to confirm Mr. Moss. Mr. Pruyn later reduced this charge to $80 for each house. So that for these experts the city became involved at the rate of $170 a house. An element of such a charge, and one most essential, is wholly omitted. How many days Mr. Pruyn’s survey took is not shown.

This judicial power to tax legal expenses, however (such a needed curb on city outlays), may be availed of, even without actual evidence of unreasonableness in the items charged. Testimony in support of the charge, at best, is but opinion evidence, and, therefore, not controlling. If it appeared that the examination of these houses consisted largely in noting in repetition the cracks, settlement and subsidence shown in one house following another, all presenting like problems, the justice, I think, became bound to use this statutory power to moderate the charge of eighty dollars a house, instead of approving en bloc a multiplication of thirty-four such items. Otherwise, this power of taxation would be stopped whenever counter evidence was withheld. Even a jury is not bound by professional estimates of value of legal services, though standing uncontradicted. (Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 124 App. Div. 896; 196 N. Y. 502; Steele v. Hammond, 136 App. Div. 667.) But the judicial *86power to tax fees and expenses is not absolutely dependent on what testimony may chance to be produced. The Legislature have conferred an ancient authority which is broader than merely to hear and to follow evidence; for the justice passes not only on charges in the abstract, but is to say how far a particular charge shall be placed on the city, as' incident to a rapid transit proceeding. In the absence of the number of days actually taken in this survey of the thirty-four houses, and the time for the larger buildings, the taxation at Special Term at fifty dollars for each house, with the reduction as to Temple Bar and Packer Institute, should not be held arbitrary or unreasonable.

The order should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Carr, Stapleton and Mills, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.