People v. Rochester Dime Savings & Loan Ass'n

Hardin, P. J.: In H. R. T. Co. v. W. T. & R. Co. (135 N. Y. 394) the subject-matter litigated was the right of the defendant to use the single trolley system, and in the course of the opinion Maynard, J., said : If the right sought to be perpetually enjoined has a money value, and there was any evidence in the moving pajiers tending to -.establish such value, the court had jurisdiction to entertain the motion, and it was its duty to exercise its discretion and dispose of the application upon its merits. We have examined the record sufficiently to satisfy us that there -was some proof of this character.” The court in that case reversed an order which denied the application. In Hanover Fire Insurance Company v. Germania Fire Insurance Company (138 N. Y. 252) an action was brought to restrain the defendants from interfering with closing up the business of the New York Underwriters Agency, and the court held that no evidence was presented as to the value of the property right in the name, [352] and, therefore, reversed an order which granted an extra allowance. Following the doctrine of the cases just alluded to, we are of the opinion that the Special Term properly held that this was a case for the application of the section of the Code which authorizes an extra allowance in a difficult and extraordinary case. While we recognize the rule that, in cases coming within section 3253 of the Code of Civil Procedure, it is largely in the discretion of the' court as to the amount of allowance (Meyer Rubber Co. v. Lester Shoe Co., 92 Hun, 52), we are of the opinion, after an inspection of the affidavits used at the Special Term, that the order ‘should be modified by reducing the allowance from $1,000 to $500; We, therefore, modify the order. All concurred. Order modified by reducing the allowance to $500, and as modified affirmed, without costs.