
    Henry C. Adams, App’lt, v. Algernon S. Sullivan, Adm’r, et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1886.)
    
    1. Extra allowance—How computed — When improperly allowed— Code Civ. Pro., § 3253.
    In an action brought for an accounting of an alleged partnership, it having been decided that there was no partnership, and no affidavits being made which establish the value of the subject involved, Held, that the ex'ra allowance was improperly allowed to the defendant; the extra allowance is to be computed upon the sum recovered or claimed on the value oí the subject matter involved. Code Civil Procedure, § 3233.
    3. Notice with summons—Effect of—Code Crv. Pro., §§ 419, 420.
    Such an action not being one included in Code Civil Procedure, § 420, a notice attached to the summons, pursuant to section 419, does not show the amount claimed.
    H. C. Adams, for app’lt; L. C. Wheeler, for resp’ts.
   Learned, P. J.

This action is brought for an accounting of an alleged partnership. The complaint besides alleging the partnership, alleges that Henry Adams, deceased, the alleged partner, under an agreement so to do, invested partnership funds in certain specified investments of real and personal estate, to a proper share of which and of the increase therefrom plaintiff alleges that he is entitled. The complaint further alleges a certain trust of real and personal property made by Henry Adams, deceased, and certain litigation in respect thereto. It is not made clear how these allegations are pertinent to the subject-matter of the controversy.

The issues joined in this complaint and the answers came on to be heard at special term, a jury being waived. A motion for a reference had formerly been made and denied, apparently on the ground that the existence of a partner- . ship had been put in issue and that that matter should be determined before an accounting should be had, if had . at all.

The learned justice who heard the case held that no part- ■ nership had been shown to have existed, and that no agreement to invest funds as alleged in the complaint had ever been made by Henry Adams, deceased.

We have examined the evidence and we think these findings are well sustained. There can be no question that the proof entirely failed to establish a partnership or the alleged agreement to invest. This conclusion of the learned , court entitled the defendants to judgment in their favor, ; and in his discretion, to costs. He awarded costs to the several defendants. This was proper.

He also awarded an extra allowance of $2,000. Ordinarily such an allowance is made in an order, and then if a party desires to appeal he appeals from the order. Here the /learned justice has included the allowance (divided among the several defendants) in his conclusions of law, on which the judgment has been entered. It may, therefore, not be improper to consider the allowance on this appeal from the judgment. No other mode seems open to the plaintiff.

The plaintiff claims that no costs could be awarded on ' these preliminary issues. We do not think that this is correct. If the court had found that a partnership had existed, then he would have ordered a reference for an ‘ accounting, and in that case no final judgment could have been entered until the accounting had been completed. But now the court finds that there was no partnership. This is an end of the action. Nothing remains except to appeal from the judgment. It was, therefore, proper for the court to award, in his discretion, costs and an extra allowance.

The extra allowance is to be computed upon the.sum recovered or claimed, or the value of the subject-matter involved. Section 3233.

Plaintiff’s summons had a notice attached that in default he would take judgment for $65,000. Section 419. This action is not one specified in section 420. Judgment could only be taken by application to the court. Section 1214. It does not appear that in such a case the notice is of any use. And the notice therefore does not show the amount claimed. Nor does the complaint, which asks for a discovery and accounting. There was no sum recovered.

Now the question is what is the value of the subject matter involved. No affidavits are made which establish this amount. One which was used states that the action was brought to recover $65,000, but that is only taken from the notice above mentioned.

There are allegations in the complaint that the annual profits of the partnership amounted to $5,000. But this is shown to be untrue by the finding that there was no partnership. So all the allegations as to investments and their value. No such investments exist as the court has found.

In Weaver v, Ely (83 N. Y., 89), legatees brought an action for an accounting and for payment of the amount due from personal property or, if insufficient, from real estate. It was claimed that the amount involved was upwards of $60,000, and extra allowance had been given. But it proved that the testator’s estate was insolvent, so that plaintiffs could get nothing. And the court held that the subject matter involved was nothing. That case was very similar to the present, and the court say that the claim was for an accounting and that plaintiff should be paid what should be found due on the accounting. The plaintiffs in that case were entitled lawfully to their legacies and to an accounting. Here the plaintiff is entitled not even to an accounting. The amount involved, said the court, could only be the plaintiffs’ interest when ascertained, and not the nominal amount of their legacies. So here the amount involved is not the alleged property which Henry Adams may have had, but plaintiff’s interest therein. And he had none. See Struthers v. Pearce, 51 N. Y., 365, at the close of the opinion; Budd v. Snales, N. Y., Daily Reg., March 19, 1884, cited 8 Civil Pro., 230, which is very similar to the present case.

Of course there are cases where a plaintiff claims some specific thing or right, and is successful. Then the value of that thing or right is the subject matter, although there be no recovery. But here the plaintiff asks an accounting and payment of what might appear to be owing to him.

No proof is given of the value of any matters as to which he asks an accounting; even if such proof would have been material under the case last cited.

We are, therefore, of opinion that the allowances of $600 to Maria F. Babcock, of $1,150 to Oliver M. Arkenbaugh, and of $250 to Lewis 0. Whiton, should be stricken out of the judgment and that otherwise the judgment should be affirmed, without costs of appeal.

Bocees and Landon, JJ., concur.  