Hammann v. Jordan — 59 N.Y. Super. Ct. 95

Majority

p. 95

VALENTINE HAMMANN, Respondent v. RICHARD JORDAN, Appellant.^[1]

Headnote

Costs, extra allowance of,'cannot be allowed to party unless he recovers in the action.

In the preceding case the judgment dismissing the complaint of the plaintiff with costs to defendant, further adjudged, “ that the plaintiff, Valentine Hammann, recover of the defendant, Richard Jordan, the sum of $124.01, the amount of extra allowance granted plaintiff by the court on the counter-claim set up in defendant’s answer.” The defendant appealed from so much of the judgment as grants this extra allowance.

This appeal of defendant was heard at the same general term and argued by same counsel as the appeal of plaintiff. Counsel for defendant, who was the appellant on this part of the judgment, contended that the court erred in awarding an allowance to the plaintiff upon the amount of defendant’s counter-claim after the dismissal of plaintiff’s complaint. Held. that plaintiff was not entitled to the extra allowance.

p. 96

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

Decided February 13, 1891.

Appeal by defendant from so much of a judgment dismissing a complaint as grants an additional allowance to the plaintiff computed upon the amount of a counter-claim.

Havens & Beebe, attorneys, and A. Britton Havens of counsel, for appellant.

Jacob F. Miller, attorney and of counsel, for respondent.

The plaintiff not having succeeded in the action, which was for a money demand, is not entitled to an additional allowance. Nor was there any judgment in his favor on the counter-claim. §§ 3228, 3234, Code Civil Procedure.

The part of the judgment appealed from by defendant is reversed.