In the Matter of the Application of The City of New York Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired for the Same Purpose in Fee, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening and Extending Jay Street from Nassau Street to Fulton Street; Smith Street from Fulton Street to Atlantic Avenue, and Schermerhorn Street from Smith Street to a Point about Fifty Feet East of 3d Avenue, Where Not Heretofore Acquired in Fee by The City of New York for Rapid Transit Purposes, in the Borough of Brooklyn, City of New York. The City of New York, Respondent; First Baptist Church in Pierrepont Street, Appellant

In the Matter of the Application of The City of New York Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired for the Same Purpose in Fee, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening and Extending Jay Street from Nassau Street to Fulton Street; Smith Street from Fulton Street to Atlantic Avenue, and Schermerhorn Street from Smith Street to a Point about Fifty Feet East of 3d Avenue, Where Not Heretofore Acquired in Fee by The City of New York for Rapid Transit Purposes, in the Borough of Brooklyn, City of New York. The City of New York, Respondent; First Baptist Church in Pierrepont Street, Appellant. [MAJORITY] Resettled order denying in part petitioner’s application for the taxation of certain expenses claimed to have been incurred in a condemnation proceeding, which proceeding was discontinued by the city under section 992 of the Greater New York Charter, modified by providing that the reference as to the reasonableness of the expenses incurred include the four items relating to the two building experts and two real estate experts, which items had been theretofore eliminated. As thus modified the order is affirmed, with ten dollars costs and disbursements to the appellant. The propriety of taxing the items respecting experts’ fees under these circumstances is established in Matter of Boardwalk Amusement Company, Inc. (247 App. Div. 313; affd., on this phase, 271 N. Y. 341). The contingent contract of the attorney was properly disallowed as an item of taxation. No distinction may be made between the contract of retainer in this case and the one disallowed in Matter of Boardwalk Amusement Company, Inc. (271 N. Y. 341). Appeal from original order dismissed. Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur.