Morrison v. Agate

New York Supreme Court

Morrison v. Agate

27 N.Y. Sup. Ct. 23

DecidedJanuary 15, 1880

StatusPublished

This text of 27 N.Y. Sup. Ct. 23 (Morrison v. Agate) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Morrison v. Agate, 27 N.Y. Sup. Ct. 23 (N.Y. Super. Ct. 1880).

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Opinion

Barrett, J.:

It was said in Bryan v. Durrie (6 Abb. [N. C.], 140), that “ whether an action should be so regarded (as difficult and extraordinary, within the meaning of the Code of Procedure), rests substantially in. the judgment and discretion of the judge to whom [25]*25the application is made, and the determination of the question usually involves so many considerations which are addressed to the discretion of the judge, that the Appellate Court rarely interferes.”

Ve may add that the court does not encourage appeals upon mere matters of discretion,, and it will only interfere when the discretion seems to have been abused, or in a plain case of its unwise exercise.

The present action was clearly both difficult and extraordinary, within the meaning of the Code. It was an action in which’ damages to the amount of- $15,000 were claimed for a malicious interference with the plaintiff’s enjoyment and occupation of valuable premises held under a long lease. It was charged that the defendant so disturbed the tenants and under-tenants that the latter were obliged to abandon the premises, and that the plaintiff lost his tenants and his rents, and that the premises became greatly injured for want of occupation, whereby the unexpired term became and was valueless. If such an action -is not to be treated as difficult and extraordinary, then the statute as to allowances becomes practically valueless. It is certainly within the principle of Moulton v. Beecher (11 Hun, 192), which was an action for malicious prosecution. Nor should we overlook the prevailing practice in daily application for many years by the learned justices of this department, sitting at circuits and special terms. By them the statute has always been liberally construed, and a fair allowance in important and substantial litigations has been treated, even by the defeated party, as almost a matter of course.

As to the amount we are of opinion that the allowance granted by Mr. Justice YaN BruNT, in the present case, was reasonable- and moderate, and that his discretion was properly exercised.

The order should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., concurred. PresentDavis, P. J., Beady and Baeebtt, JJ.

Order affirmed, with ten dollars costs and disbursements.

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Barrett, J.:

It was said in Bryan v. Durrie (6 Abb. [N. C.], 140), that “ whether an action should be so regarded (as difficult and extraordinary, within the meaning of the Code of Procedure), rests substantially in. the judgment and discretion of the judge to whom [25]*25the application is made, and the determination of the question usually involves so many considerations which are addressed to the discretion of the judge, that the Appellate Court rarely interferes.”

Ve may add that the court does not encourage appeals upon mere matters of discretion,, and it will only interfere when the discretion seems to have been abused, or in a plain case of its unwise exercise.

The present action was clearly both difficult and extraordinary, within the meaning of the Code. It was an action in which’ damages to the amount of- $15,000 were claimed for a malicious interference with the plaintiff’s enjoyment and occupation of valuable premises held under a long lease. It was charged that the defendant so disturbed the tenants and under-tenants that the latter were obliged to abandon the premises, and that the plaintiff lost his tenants and his rents, and that the premises became greatly injured for want of occupation, whereby the unexpired term became and was valueless. If such an action -is not to be treated as difficult and extraordinary, then the statute as to allowances becomes practically valueless. It is certainly within the principle of Moulton v. Beecher (11 Hun, 192), which was an action for malicious prosecution. Nor should we overlook the prevailing practice in daily application for many years by the learned justices of this department, sitting at circuits and special terms. By them the statute has always been liberally construed, and a fair allowance in important and substantial litigations has been treated, even by the defeated party, as almost a matter of course.

As to the amount we are of opinion that the allowance granted by Mr. Justice YaN BruNT, in the present case, was reasonable- and moderate, and that his discretion was properly exercised.

The order should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., concurred. PresentDavis, P. J., Beady and Baeebtt, JJ.

Order affirmed, with ten dollars costs and disbursements.

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27 N.Y. Sup. Ct. 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrison-v-agate-nysupct-1880.