Harlem Bridge, Morrisania & Fordham Railway Co. v. Town Board of Westchester

Majority

p. 349

The Harlem Bridge, Morrisania and Fordham Railway Company, Resp’t, v. The Town Board of the Town of Westchester et al., App’lts.^[1]

(Court of Appeals,

Filed June 12, 1894)

Headnote

Appeal—Stipulation—Extra allowance.

A stipulation for an order of discontinuance of an action to be without prejudice to a motion for an extra allowance may be properly made by the parties, the motion pursuant to it is regular, and the general term has power to review on the merits the order granting it.

Appeal from order of the general term of the supreme court in the first judicial department, made January 12, 1894, which reversed orders of the special term granting motions by defendants for leave to renew motion for extra allowance on discontinuances of action and granting said allowances.

The nature of the action and the facts, so far as material, are stated in the opinion.

1 Alfred B. Ovuikshank, for app’lt; Henry L. Scheuerman, for resp’t.

This is an action for an injunction to prevent the defendants from interfering-with the plaintiff from building and operating its street surface railroad, and to prevent defendant traction companies from building their own roads upon certain highways in Westchester, over which plaintiff claimed exclusive rights under its charter. After the action had been pending for some months a motion was' made to discontinue it, by plaintiff, which was granted by order • entered March 7th, 1893, the order reciting that.it appeared the plaintiff had complied with all terms “except to the extra allowance to be hereafter disposed of.” This had reference to a stipulation made the day before (March 6th, 1893), to the effect that the entry of the order of discontinuance should be without prejudice to the motion for an extra allowance, then pending, and that if the extra allowance was granted and not paid, defendants could move to vacate the order of discontinuance ex parte. On the 16th of May, 1893, Mr. Justice Patterson of New York, sitting at special term, granted to the town board of the town of Westchester, and certain other defendants, an extra allowance of §500. From this order the plaintiff appealed, and the general term refused to consider the appeal on the 'merits and reversed the order, for the alleged reason, as appears by the order, that the court had no power, after the. action had been discontinued, to entertain a motion for an extra allowance. The defendants interested appeal from this order. We think it was competent for the parties to enter into the stipulation they did for the conditional discontinuance of this action. This court has repeatedly held that parties may enter into any stipulation not unreasonable and not against good morals or sound public policv. Matter of N. Y., L. E. & W. R. R. Co., 98 N. Y. 453 , and cases there cited. The motion for an extra allowance was therefore, regular,

p. 350

and the general term had full power to consider on the merits the appeal from the order made by the special term.

We are urged by the respondent to consider the question of the extra allowance on a ground not resting in the discretion of- the supreme court, viz,, was there any subject-matter involved in this action which was shown to have a value, upon which an allowance could be computed? We do not think this question,is properly before us on this appeal, as the only point presented for our consideration is whether the general term possessed the power to review the order of the special term on the merits.

For the reasons already stated, we are of opinion that the order appealed from should be reversed.

Order appealed from reversed, with costs, and case remitted to general term for its action upon the appeal from the special term.

All concur. Ordered accordingly.