Kremer v. New York Air Terminals, Inc.

235 A.D. 796

Opinion

Order granting plaintiff an extra allowance of $1,500 modified by reducing it to $12.50, and as so modified affirmed, without costs. (1) Orders of this character have been treated as appealable. (People v. N. Y. C. R. R. Co., 29 N. Y. 418, 421; Diamond Expansion Bolt Co. v. U. S. Expansion B. Co., 177 App. Div. 554, 565; Commercial National Banke v. Hand, 27 id. 145; Civ. Prac. Act, § 609, subds. 3, 4.) (2) The five per cent allowance should have been computed on the amount recovered, which amount was $250, and, therefore, the allowance should have been $12.50. (Williamsburgh City Fire Ins. Co. v. Central New England R. Co., 202 App. Div. 813; affd., 235 N. Y. 582; Civ. Prac. Act, § 1513.) Recourse to value of subject-matter for the purpose of computing an extra allowance may only be had where the party does not seek or recover damages. (Little Falls Fibre Co. v. Ford & Son, Inc., 223 App. Div. 559; affd., 249 N. Y. 495.) Lazansky, P. J., Hagarty, Carswell, Scudder and Davis, JJ., concur.