Opinion
March Term, 1899.
A. Edward Woodruff, for the appellant.
George Putnam Smith, for the respondent.
In Hanover Ins. Company v. Germania Ins. Company (63 Hun, 275; affd., 138 N.Y. 252) it was said: "It has frequently been determined that where no sum of money is claimed in the pleadings or allowed to the plaintiff, there is nothing upon which an extra allowance can be based and that the court has no power to grant it." The statement as to the nature of this action in the affidavit of the defendant's attorney is, that it "was brought to obtain some sort of relief in respect to a paper in the form of a general release which had been executed by the plaintiff, including an injunction against its use." Taking this statement as correct and with the most favorable view of the nature of the action, it is clear that there was involved therein no proper basis for an allowance. No subject matter of money value was involved and, therefore, there was no basis upon which to fix an allowance.
We think the order appealed from should be modified by striking out the provision granting the extra allowance, with ten dollars costs and disbursements of this appeal to the appellant.
VAN BRUNT, P.J., BARRETT, RUMSEY and INGRAHAM, JJ., concurred.
Order modified by striking out the provision granting extra allowance, with ten dollars costs and disbursements of appeal to the appellant.