In the Matter of Anna Riester et al., Individually and as Representatives of Fleming Citizens Committee, Appellants, v. Town Board of the Town of Fleming et al., Respondents, 21 A.D.2d 748

Order unanimously modified by reducing the amount of the undertaking required of petitioners to $2,000 and as modified order affirmed, with costs to petitioners. Memorandum: This appeal is solely from that part of an order of Special Term, Supreme Court, which ordered petitioners to give an undertaking in the amount of $140,000 as a condition precedent to reviewing a determination of the Town Board establishing a water district. The order directing the bond was granted pursuant to subdivision 2 of

section 195 of the Town Law which provides in part: “ No review shall be had unless at the time of the application for a certiorari order the interested person seeking the review shall give an undertaking approved by the supreme court, or a justice thereof, as to form, amount and sufficiency sureties, that, in the event of failure to modify said final determination or order he or they will pay to the town board, all such, costs and expenses as are incurred by it on account of the said certiorari proceedings, as shall be determined by the court.” (Emphasis added.) The Special Term Justice construed the words “ costs and expenses ” as though they included damages because of the institution of the proceeding.

No authority for such construction has been brought to our attention. In fact an analysis of the use of similar langage in other statutes indicates that this language is intended to include just what it says — all costs and expenses incurred because of the certiorari proceeding. Possible damages, therefore, should play no

part in setting the amount of the bond, which need be sufficient only to keep the town whole because of actual costs and disbursements in the proceeding. The amount of $140,000 is grossly excessive. (Appeal from Cayuga Special Term denying respondents’ motion to dismiss petition as matter of law, directing filing of $140,000 undertaking, within five days, and upon failure to file a final order will be entered.) Present — Williams, P. J., Bastow, Henry, Noonan and Del Yecchio, JJ.