Maloy v. Associated Lace Makers' Co. — 7 N.Y.S. 958

Majority

p. 958

Maloy, Appellant, v. Associated Lace Makers’ Co. et al., Respondents.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Appeal from special term, Westchester county.

Action by Michael E. Maloy against the Associated Lace Makers’ Company, Herman Duden, Myron Winslow, and Julia E., his wife, to set aside a deed. Code Civil Proc. N. Y. §§ 3252, 3253, provide that, in certain cases involv

p. 959

ing realty, or In difficult and extraordinary cases, the court may allow the plaintiff in addition to the prescribed costs a certain percentage on the amount involved in the action.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

James M. Lydcly, for appellant. Howard Y. Stillman and George A. Heaney, for respondents.

Although the title to the real estate may in a certain sense have been involved in the action, the real controversy concerned only the plaintiff’s interest therein. Nothing appears in the case that enables the court to know the value of such interest. Probably no one can tell the amount until the close of the partnership accounting. On that state of facts the trial judge could not determine what amount was in controversy, and consequently had no basis upon which to fix an allowance. The litigation was difficult, and it is to be regretted that its weight must be principally borne by the successful party. We see no way to any different result on the papers before us. The order must be affirmed,' but without costs.