People v. Albany & Vermont Railroad

16 Abb. Pr. 465

Opinion

By the Court.

*—Miller, J.

By section 308 of the Code, in addition to the allowance provided for by section 307, the plaintiff', upon the recovery of judgment by him in certain actions, is allowed a percentage on the amount of the recovery. By section 309 these rates are to be estimated upon the value of the property claimed, &c., and upon the amount found due in case of a mortgage foreclosure. The concluding portion of the same section is as follows: “ In difficult and extraordinary eases, when a trial has been had, 1 except’ in any of the actions or proceedings specified in section three hundred and eight, the court may, also in its discretion, make a further allowance to any party, not exceeding five per cent, upon the amount of the recovery or claim, or subject-matter imolved.” It must be conceded that this is a “ difficult and extraordinary” case within the meaning of the clause last cited. The “ subject-matter involved” in the controversy was the operating and repairing of the road in question. The amount of the subject-matter affected by it and involved in it, was of. the value' of $50,000. The suit was brought to prevent the removal of property of the road of larger value, and to compel a reconstruction, involving a heavy expense. An injunction was obtained, and the controversy was terminated by a successful defence. It appears to me that this is a ease clearly within the intentt meaning, and spirit of the clause above cited, and was of such a character as to authorize an extra allowance. I think, therefore, that the order made at special term should be affirmed, with ten dollars .costs of appeal.

Present, Hobeboom, Peckham, and Milieb, JJ.