Niagara Mohawk Power Corp. v. Great Bend Aggregates, Inc.

Callahan, J. P. (dissenting).

I concur with the learned decision of Supreme Court, Jefferson County (Gilbert, J.). The majority clearly ignores EDPL 701 which permits an additional discretionary allowance for an award of "actual and necessary costs, disbursements and expenses * * * actually incurred by [the] condemnee.” By its decision the majority is depriving the condemnee of its constitutional and statutory right to receive just compensation. The right to an additional allowance does not accrue until there is an award, order or judgment in the underlying condemnation proceeding. The fact…