Opinion
June 28, 1982
In two actions for permanent injunctions to enjoin defendants from using wells located on their premises for domestic water service, plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Delaney, J.), dated May 5, 1981, which granted defendants' cross motion to dismiss plaintiff's complaints in both actions and denied plaintiff's motion for a preliminary injunction, (2) an order of the same court, dated July 13, 1981, which, upon reargument, granted defendants Brandes an award of $3,000 counsel fees, and (3) a judgment of the same court entered thereon on July 27, 1981. Appeals from orders dated May 5, 1981 and July 13, 1981 dismissed, without costs or disbursements (see Matter of Aho, 39 N.Y.2d 241, 248). Judgment entered July 27, 1981, modified, on the law, by deleting therefrom the provision granting an application for counsel fees, and substituting therefor a provision denying said application, and order dated July 13, 1981 is vacated. As so modified, judgment affirmed, without costs or disbursements. It was an abuse of discretion for Special Term to have awarded counsel fees under the guise of an additional allowance pursuant to CPLR 8303 (subd [a], par 2) (see Tucker v Toia, 64 A.D.2d 826). We find plaintiff's other contentions to be without merit. Damiani, J.P., Titone, Mangano and Brown, JJ., concur.