The Public Service Commission of the State of New York for the First District, successors of the Rapid Transit Railroad Commissioners, appeal from an order of the Special Term granting costs and allowances to the respondents, to whom damages have been awarded for property rights taken for the.construction and *573operation of a subway under Joralemon street, in the city of New York.
There are no disputed facts presented by the record, and the only question to be considered is whether or not the court possessed authority and power to make the order appealed from. This question came before this court in this same proceeding in 1908, on an appeal from an order of the Special Term denying costs and allowances on the ground of lack of power in the court. It was contended by the appellants that such power was given both by the provisions of the charter of the city and by the Bapid Transit Act. This court sustained this contention, holding that the case now presented was within the provisions of the charter (Laws of 1901, chap. 466, § 998, as amd. by Laws of 1904, chap. 736), authorizing the payment of allowances, counsel fees, etc., in proceedings for “ the acquisition of property for any public purpose, in the city of New York,” and that costs and allowances were also authorized by the provisions of the Bapid Transit Act (Laws of 1891, chap. 4, and acts amendatory thereof). (Matter of Board of Rapid Transit Railroad Commissioners, 128 App. Div. 103.) That case was taken to the Court of Appeals, but the question of whether such costs, disbursements and allowances were not authorized by the provisions of the charter was not passed upon by that court. (Matter of Rapid Transit R. R. Comrs., 197 N. Y. 81, 110, 111.) Our determination that under the provisions of the charter authority exists for the granting of costs and allowances, standing unreversed, is so far as the Special Term and this court is concerned the law of the case, and controls the disposition of this appeal in favor of the respondents.
The order appealed from is affirmed, with ten dollars costs and disbursements.
Jenks, P. J., Hirschberg and Woodward, JJ., concurred; Burr, J., read for reversal.