Weeks v. Silver Islet Consolidated Mining & Land Co. — 32 N.Y. St. Rep. 417

Majority

p. 417

Theodore C. Weeks, Resp’t, v. The Silver Islet Consolidated Mining & Land Company et al., App’lts.

(New York Superior Court, General Term

Filed June 27, 1890.)

Headnote

Costs — Extra allowance.

The only proof of the value of the subject-matter of the action was the-allegation that the action was brought to allow plaintiS to redeem from forfeiture certain [stock on payment of sums due for unpaid assessments, and that such sums amounted to $15,267. Held, that this was not evidence that the stock was worth that sum, and that there was no basis shown for an extra allowance.

Appeal from an order denying a motion for an extra allowance.

Sticlcney & Shepard, for app’lts ; S. 'A. & D. J. Noyes, for resp’t

The motion for an extra allowance was denied upon .the ground that it did not appear that the right which plaintiff sought to enforce was of any value, and that, therefore, there was no fact which could be used as a basis for computation upon which to predicate an extra allowance.

The only allegation in the printed papers bearing upon the question of the value of the subject-matter involved in the action, is the allegation that the action was brought to procure a judgment allowing the plaintiff to redeem from forfeiture certain stock of the defendants upon payment of the sums due thereon for unpaid assessments, and that the amount so due was, at the time of the trial, $15,267.

We are of the opinion that this is not evidence that the stock was worth the sum of $15,267. It may well be that the stock had been assessed for more than its value. We have not the

p. 418

pleadings before us, and we cannot say what the allegations in the pleadings were, nor can we say whether the plaintiff was estopped from denying that the stock was of the value above specified.

Order affirmed, with costs.

Freedman, J., concurs.