Grissler v. Stuyvesant

67 Barb. 81

Opinion

By the Court, Ingraham, P. J.

The only relief sought in this action was for an injunction, and that only for a limited period. No money was sought- to be recovered, and no property was the subject-matter of the action.

The statute gives an allowance on the amount recovered or claimed, or the subject-matter involved. In the latter case such value is to be ascertained by the court.

[First Department, General Term at New York, November, 1873.

There was nothing in this case on which an allowance could be estimated, nothing received, and no money or property claimed in the action. The subject-matter involved was the right to prosecute the pending proceedings before the justice. It is not practicable to estimate the value of that right. The determination whether the plaintiff shall be permitted to prosecute the summary proceedings did not involve the recovery of the lands nor of the rent alleged to be due.

The decision on the demurrer did not affect the right to the rents, nor the right to the lands.

The remedy of the defendant for expenses and damages in restraining his proceedings should be had on the injunction undertaking.

The order should be reversed.

Ingraham and Davis, Justices.]