Murray v. Robinson — 16 N.Y. Sup. Ct. 137

Majority

p. 137

ROBERT MURRAY, Jr., Appellant, v. DOUGLASS ROBINSON and JAMES F. COX, Respondents.

Headnote

Bxtra ctllowcmce— Code, § 309.

Where in an action npon a money demand the plaintiff claims to recover $,7,000, and npon the trial obtains a verdict for six cents, an extra allowance cannot be granted to the defendant, under section 309 of the Code, based upon the amount claimed by the plaintiff.

Appeal from an order made at the Special Term granting an extra allowance to the defendant, under section 309 of the Code.

This action was brought to recover ¡¡¡>7,750, to which amount the plaintiff claims to have been damaged, by the failure of the defendant to effect an insurance to that amount upon a vessel belonging to the plaintiff. Upon the trial the plaintiff had a verdict of six cents.

Dexter A. Hawhins, for the appellant.

Treadwell Cleveland, for the respondents.

We have twice held in this court that the allowance in question could not be made; the first case was Morse v. -, tried at Cir

p. 138

cuit. Tlie complaint claimed $1,500 as a contract-price for the manufacture of brick machines. The defendant averred in his answer that the machines were warranted to accomplish a. certain result, and failed; that he had paid $500 on the contract, and asked to recover that sum. The jury found a verdict for defendant for $500, and the court, at Special Term, held that no extra allowance could be made beyond five per cent on the recovery, $500. This court at General Term affirmed this order. The second ease was the case of Pinder v. Stoolhoff (reported in 7 Abbot [N. S.], 433). There the recovery was'by the plaintiff, for six cents. This court held that the defendant was entitled to no extra allowance, because he had not recovered.

This action is a pure action at law upon a money demand. There cannot be two recoveries — one by the plaintiff for damages and the other by the defendant for costs. The words “ recovery or claim,” in section 309 of the Code, have a technical, legal meaning— when the plaintiff succeeds he recovers, when the defendant succeeds he destroys the plaintiff’s claim.

The order granting an extra allowance should be reversed, with costs and disbursements.

Present — Baenaed, P. J., Peatt and Dyeman, JJ.

Order reversed, with, costs and disbursements.