Voorhis v. French — 47 N.Y. Super. Ct. 364

Majority

p. 364

JOHN R. VOORHIS, Appellant, v. STEPHEN B. FRENCH, et al., Impleaded, &c., Respondents.

Headnote

Additional allowance—upon what subject matter may be estimated.—• Order taken by default—when appeal from will lie.

In an action to restrain defendants, as police commissioners, from entertaining, determining, or adjudicating a certain claim to the office of police commissioner until competent adjudication be had, to which office plaintiff claims to be entitled, the value of the subject matter cannot be so estimated as to permit the calculation of a percentage for an allowance, under section 3,253, Code of Civil-Procedure.

Notice that an allowance will be applied for, will not be implied in the notice of trial, in a case where the court has not power to grant an allowance, consequently an order granting an allowance in such a case may be appealed from, though taken by default.

Before Sedgwick, Ch. J., and Freedman, J.

Decided June 6, 1881.

Appeal from such part of an order dismissing complaint as granted to defendants an extra allowance.

The facts appear in the opinion.

Chauncey 8. Truax, for appellant.

Willard Bartlett and Elihu Boot, for respondents.

The action was brought to restrain the defendants, as police commissioners, from entertaining, receiving evidence upon, determining or adjudicating any claim or title to the office of commissioner of police, which might be made by defendant Smith, to the possession of or enjoyment of said office in the place or stead of the plaintiff, who claimed to be rightfully entitled to the office, until

p. 365

there had been a competent adjudication as to the title of the office.

The defendants gave notice of trial. The notice did not refer to any intended application for an allowance. After this notice plaintiff made default on the cause being regularly called, and his default was entered. In the order of default, an . extra allowance was granted.

The provision as to allowance under the Civil Code of Procedure is the same as under the former Code.

By section 3,253, in a difficult and extraordinary case, the court may award not exceeding five per centum upon the sum recovered or claimed, or “ the value of the-subject matter involved.” This does not comprise the present case. The subject matter of the action could not have such a value of it estimated as to permit a calculation of a percentage. The court had not power, in such a case, to grant an allowance.

It is claimed that as the order was granted by default, it is not appealable ; and it has been' uniformly held, that where a judgment has been given or an order made on default, after notice, there can be no appeal. The cases in which this has been held, put it always upon the ground that the party has had notice of the thing to be claimed against him, and that it is right to uphold what he has not appeared to oppose. This principle will not apply to a case where no notice has been given. It is the practice to apply for an allowance upon 'a trial of a cause without special notice. The general notice of trial is sufficient, in cases where the law and practice provide for an allowance. It cannot be deemed, however, that such a notice can be implied in the notice of trial, when it is not a case for an allowance, in the sense that the court has no power to grant one.

This conclusion is supported by the decision of the general term of the supreme court in Wilkinson v.

p. 366

Tiffany ( 4 Abb. Pr. 99 ), that when the special term makes, upon default, an order which it had no authority to make, the party prejudiced may move at special term to set aside the order for irregularity, or may appeal from the order to the general term. The excess of authority in that case was, that the special term had given a percentage of an amount claimed by the plaintiff, when in fact he had recovered much less than he claimed.

That part of the order which is appealed from should be reversed, with $10 costs, and. disbursements to be taxed.

Freedman, J., concurred.