Shiels v. Wortmann — 37 N.Y. St. Rep. 134

Majority

p. 134

Andrew J. Shiels et al., Resp’ts, v. Sigismund B. Wortmann et al., App’lts.^[1]

(Court of Appeals,

Filed April 21, 1891.)

Headnote

1. Extea allowance.

This court has no jurisdiction to review the discretion of the court below in granting an extra allowance where no rule of law is violated or in refusing it, unless such refusal was based on a want of authority.

2. Same—Appeal—Re-akgument.

Where the general term has decided that a party is entitled to an extra allowance, to be settled by the special term, and on the subsequent appeal from the order of the special term the general term concludes that no extra allowance should be made, its decision is not subject to review in this court.

Appeal from order W the supreme court, general term, second department, reversing order granting an extra allowance.

Edward W. S. Johnston, for app’lts; Wm. J. Gaynor, for resp’ts.

The facts of this case were such that the court below, in the exercise of its discretion, could have granted or refused an extra allowance to the defendants. They made a motion at a special term for an extra allowance, and it was denied upon the ground that the action was not difficult and extraordinary. Upon an appeal to the general term this order was reversed, upon the ground that the case was a proper one for an extra allowance, and it was there ordered that the motion be remitted to the special term, “to be settled as to the amount of the extra allowance,” and thereafter the special term, after hearing counsel for both parties, made an order granting the defendants an extra allowance of $500. The plaintiffs appealed from that order to the general term where it was reversed and then the defendants appealed to this court.

We have many times decided that this court has no jurisdic

p. 135

tion to review the discretion of the court below in granting an extra allowance where no rule of law is violated, or in refusing an extra allowance unless such refusal has been based upon a want of authority, thus presenting a question of law.

It does not appear upon what ground the order appealed from was based. If the judges composing the general term, after deciding upon the prior appeal that the defendants were entitled to an extra allowance, upon the subsequent appeal changed their minds, and concluded that no extra allowance should be made, we know of no reason why they could not do so without subjecting their conclusion to review in this court. Having once decided that the defendants were entitled to an extra allowance, they could have granted a re-argument and changed their decision. But having ordered the motion to be heard at special term, when it came before them the second time, they could, in the exercise of their discretion, reach a different conclusion from that which they had come to upon the prior appeal; and in holding that the defendants were entitled to no extra allowance they were exercising a discretion which cannot be reviewed in this court.

But it is more probable that upon the last appeal the judges of the general term came to the conclusion that the extra allowance granted at the special term was too large, and for that reason reversed the order, and if that was the ground upon which their decision was based, it was clearly discretionary and not subject to review here. So that, in any view that can be taken of this case, we have no jurisdiction to review the order appealed from.

The application should be dismissed, with costs.

All concur, except Gray, J., absent