Hyperlawhypertext legal database New York Breweries Co. v. Nichols 25 N.Y.S. 425

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New York Breweries Co. v. Nichols

25 N.Y.S. 425 Court N.Y. Gen. Term Decision date 1893-10-13 English

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p. 425
NEW YORK BREWERIES CO., Limited, v. NICHOLS et al.
(Supreme Court, General Term, First Department.
October 13, 1893.)

Headnote

Costs—Extra Allowance—To Several Parties.
Under Code Civil Proc. § 3253, which provides that in certain cases the ■ court may, in addition to the usual costs, “award to any party a further sum * '= * not exceeding five per centum upon the sum recovered or claimed or the value of the subject-matter involved,” the court cannot award 5 per cent to each defendant or set of defendants appearing by separate attorneys, but it can only award a sum not exceeding 5 per cent.,. to be apportioned among such defendants.
Appeal from special term, New York county.
Action by the New York Breweries Company, Limited, and Daniel B. Sickles, as sheriff of the city and county of New York, against Edward P. Nichols, William H. Douglas, Thomas M. Freeman, Benjamin F. Pendleton, Benjamin F. Carver, and Wilford Y. Nichols,, to recover $5,000 for preventing the sheriff from taking posssesion of goods levied on. Plaintiff company moved for leave to discontinue the action, without costs. The court granted the motion to discontinue, but imposed the conditions that “plaintiff pay, within ten days after the taxation of costs herein, separate bills of costs, and an extra allowance of $250 to each defendant or set of defendants appearing by separate attorneys.” From so much of the order as Imposed the condition, plaintiff company appeals.
Modified.
The provisions of the Code of Civil Procedure relating to extra allowances. are as follows:
“Sec. 3253. In a difficult and extraordinary case, where a defense has beflu interposed in any action, the court may also, in its discretion, award to any party a further sum, as follows: * * * In any other case specified in this section a sum not exceeding five per centum upon the sum recovered or • claimed or the value of the subject-matter involved.
“Sec. 3254. But all the sums awarded to the plaintiff, as prescribed in section 3252 of this act, or to a party, or two or more parties, on the same side, as prescribed in the last sentence of 3251 of this act, and in subdivision second of the last section, cannot exceed, in the aggregate, two thousand dollars.”’
Argued before VAN BRTJNT, P. J., and PARKER, J.
Guggenkeimer & Untermyer, (M. Weinman, of counsel,) for appellant.
Hatch & Wickes, for respondent Douglas.
Owen, Gray & Sturges, for respondents Nichols and others.

An extra allowance to parties defendant cannot exceed 5 per cent, on amount involved. H such defendants - appear by separate attorneys, an extra allowance equal to 5 per cent, may be apportioned between them, but cannot be allowed to each. Lane v. Van Orden, 63 How. Pr. 237 . On this motion for leave to discontinue, the court determined that there should be-allowed to each party appearing an extra allowance of 5 per cent..

p. 426
This was error, and the order should be so modified as to provide for an extra allowance of $125 to each' defendant or set of ■defendants separately appearing, without costs.

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