Adams v. Arkenburgh — 11 N.Y. St. Rep. 121

Majority

p. 121

Henry C. Adams, Resp’t, v. Oliver Arkenburgh, Etc., App’lt.^[1]

(Court of Appeals,

Filed October 4, 1887.)

Headnote

1. Costs—Extra allowance—When entitled to.

The summons in this action gave notice that, upon default of an appearance or answer, judgment would be taken by the plaintiff in the sum of $65,000, with interest, etc. The complaint alleged the plaintiff’s partnership with the defendant’s testator, an investment by the latter in his own name of specific amounts of the joint funds of the partnership in the purchase of specific real estate and securities ■ and the receipt by him of the rents, etc., aggregating a large sum. The complaint also alleged, on information and belief, that he had received the income of said partnership and the profits accuring from the investment of such income, amounting to not less than $200,000. The judgment asked was that the partnership be dissolved, and also that an account be taken not only of the partnership business, but of the receipts of moneys, investment of the same, dividends, rents, etc., and all the rights, etc., of the plaintiff in respect thereto as specified in the complaint. The judgment rendered was conclusive of the right of the defendants to retain, as the individual property of said trustee, all the property described. Held, that there was a case made upon which the discretion of the trial judge, as to extra allowance, might be exercised.

2. Same—Basis for computation op an .allowance.

One-half of the value of the property, etc., as stated in the complaint, furnished a sufficient basis for computation of an allowance.

8. Same—Practice—General term must pass upon merits.

The decision of the trial judge was subject to review by the general

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term, and, as that court had disposed of it without passing upon the merits, held, that their order should be reversed and the case remitted to them for further consideration.

Appeal from an order of the supreme court, general term, third, department, reversing an order of special term for an extra allowance of costs.

Robert Forsyth Little, for appl’t O. M. Arkenburg, etc.; L. C. Whiton, guardian ad litem for infant appl’t; Fred. M. Littlefield, for appl’t Henry C. Babcock, etc.

—As appears from the recitals in the order appealed from, the order of the special term was reversed upon questions of law and not upon a review of the discretion of the judge by whose directions the order for an extra allowance of costs was given. It is to be conceded that if the subject matter of the litigation has no pecuniary value, or if its value is not shown, such allowance is not authorized (Conaughty v. Saratoga County Bank, 92 N.Y., 401 ), for under the Code (section 3253) it is, if allowed, to be computed upon the sum recovered, or claimed, or upon the.value of the subject matter involved. But the concession does not aid the appellant, for as plaintiff in the action he gave notice with the summons that upon default of an appearance or answer, judgment would be taken by him in the sum of $65,000, with interest from April, 1875, and it is not for him to say that this notice is a nullity. It is his statement of the amount involved in the action. The complaint justifies the statement. It alleges the plaintiff’s partnership with the deceased Henry Adams, an investment by the latter in his own name of specific amounts of the joint funds of the partnership in the purchase of specific real estate and securities, and the receipt by him of the rents and dividends issuing therefrom, amounting in the aggregate to large sums, of which an approximate estimate is made; and further, the plaintiff alleges with absolute definiteness that “ the average income of said partnership was not less than $5,000 per annum—equal in gross sums to upwards of $100,000—which was received and invested by said Henry Adams in manner hereinbefore stated; and that said Henry Adams received all dividends, annual interests and profits accruing from such ' investments, amounting in gross sums to another $100,000—equal in all to not less than $200,000, all of which facts he states according to his best recollection, information and belief.”

The judgment asked is that the partnership be dissolved, and also that an account be taken, not only of the partnership business, but of the receipts of moneys, investment of the same, dividends, rents, etc., and of all the rights, etc._, of the plaintiff in respect thereto, as specified in the complaint. One-half of the property, securities and money mentioned

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as the assets of the partnership constitute the subject-matter involved, that being the plaintiff’s share, if a co-partner, and one-half of the value as stated in the complaint furnishes a sufficient basis for computation of an allowance. The judgment rendered is conclusive of the right of the defendants to retain as the individual property of Henry Adams all the property described, and we think a case was made upon which the discretion of the trial judge as to allowance might be exercised.

The cases cited by the respondent differ from the one in hand

In Weaver v. Ely ( 83 N. Y., 89 ), the plaintiff’s legacies were only payable after the testator’s debts, the estate was shown to be insolvent, and it seemed clear that the plaintiff’s claim was without value.

In Struthers v. Pearce ( 51 N. Y., 365 ), the allowance was reduced to a sum estimated on one-fourth of the value of the lease (that being the property in question), the plaintiff claiming no interest beyond that. Here the plaintiff claims as equal partner, and there is no suggestion that the sums stated are subject to any deduction. They might be increased and added to by other items as to the detail of which the plaintiff assumed ignorance, but not reduced, for as to those enumerated the plaintiff spoke from knowledge or information, upon the faith of which he made the allegations. The decision of the trial judge is, however, subject to review by the general term, and as that court has disposed of it without passing upon the merits, their order should be reversed and the case remitted to them for further consideration.

All concur.