Stallman v. Kimberly — 33 N.Y. St. Rep. 813

Majority

p. 813

John H. Stallman et al., App’lts, v. Agnes L. Kimberly et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Costs—Extra allowance—Discontinuance.

Plaintiffs Brought three actions of replevin, which involved a construction of the warehousemen’s act. It was stipulated that the second action he tried and the others abide the final result thereof, and that an extra allowance of five per cent, on the value of the goods be. made in such action. A judgment in favor of plaintiffs in that action was reversed .and the allowance provided for granted. The first action was then discontinued on payment of costs, and leave granted to discontinue this action on payment of costs and an extra allowance. Held, no error.

Appeal from an order making an additional allowance of costs.

Preston Stevenson, for app’lts; Sherman Bvarts, for resp’ts.

The plaintiffs commenced three actions of replevin to recover the possession of personal property. Their right to maintain the actions depended upon the construction to be given to tire act concerning warehousemen and tbeir storage of goods.

The second action alone was tried and a verdict recovered in favor of the plaintiffs, and it was stipulated that the other two

p. 814

actions should abide the final result of the action so tried, and that an additional allowance of five per cent, upon the value of the goods should be made in that action.

The general term set aside the plaintiffs’ recovery, and a report of the decision has been made in 53 Hun, 531 ; 24 N. Y. State Rep., 787. An appeal was taken to the court of appeals where this decision was affirmed, and an allowance was obtained by the defendants pursuant to the stipulation. The first action was discontinued upon the payment of the costs, and an application was made to the court for leave to discontinue this action, and that leave was given upon the payment of costs, together with an allowance amounting to $267.

That an allowance may be made after issue joined upon the discontinuance of an. action follows from the language "of § 3253 of the Code of Civil Procedure, and it has been so understood by the courts. Coffin v. Coke, 4 Hun, 616 ; Bright v. Milwaukee, etc., R. R., 1 Abb. N. C., 14 ; Robins v. Gould, id., 133 ; Society of New York Hospital v. Coe, 15 Hun, 440 .

That the case was a difficult and extraordinary one has not been denied. It depended, as the other two also did, upon the construction which should be placed upon this act of the legislature.

The value of the property recovered in the action which was tried was the sum of $1,820.70, and the allowance accordingly was necessarily small in its amount.

In this action the value of the property in dispute was very much larger, and the court, considering the nature of the litigation and of its dependence upon the construction of this act, made the further allowance in this action, as being no more than an adequate amount to compensate the defendants for their services in resisting the litigation.

It was probably intended by the order in this action to increase. . the allowance beyond the amount allowed in the second action to such a sum as would appear to correspond with the value of the property involved and the question upon which the right to it depended. There was nothing unreasonable in making the addition which the court did in this action in this manner to the allowance in the preceding suit, and the order should be affirmed, with ten dollars costs besides the disbursements.

Yan Brunt, P. J., and Brady, J., concur.