
    Hudson River Tel. Co. v. Watervliet Turnpike & Railroad Co.
    
      (Supreme Court, General Term, Third Department.
    
    September 9, 1891.)
    Costs—Additional Allowance.
    In an action by a telephone company against an electric railway company, in which plaintiff seeks nothing more than to restrain defendant from operating its road along a certain portion of a street, an additional allowance under Code Civil Proc. N. Y. § 3353, providing that in a difficult or extraordinary case the court may award, as additional costs, a sum not exceeding 5 per cent, on “the sum recovered or claimed, or the value of the subject-matter involved, ” is properly refused on the ground that there is no basis on which an allowance can be estimated.
    Appeal from special term, Albany county.
    Action by the Hudson River Telephone Company against the Watervliet Turnpike & Railroad Company for an injunction. The complaint was dismissed. Defendant appeals from an order denying its motion for an additional allowance.
    For appeal from the judgment, see 15 N. Y. Supp. 752.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      Marcus T. Hun, for appellant. Herrick & Delehanty, (D. Cady Herrick, of counsel,) for respondent.
   Mayham, J.

This application was made under section 3253 of the Uoue of Civil Procedure. The action was to restrain the defendant from operating that portion of its railroad passing along Broadway in the city of Albany, by electricity as a motive power, upon what is known as the “Single Trolley System,” on the ground that the use of such system by the defendant at that point obstructed or impaired the use of the plaintiff’s telephone system, which bad its central ofljce, batteries, key-board, and other apparatus lawfully located on that street, and in operation there, prior to the time the defendant commenced to propel its cars through that street by the use of electricity. On the trial of this action the referee dismissed the plaintiff’s complaint. It does not seem to be urged on this motion that this action was not of the character and kind that comes within the designation in the Code of difficult and extraordinary actions; but the motion was denied, as appears from the order, on the ground that there was no basis in the subject-matter of the action on which an additional allowance can be estimated. The language used in the order clearly indicates that the decision was solely upon that ground. The order is as follows: “Ordered that said motion for an extra or additional allowance of costs to the defendant in the above-entitled action be, and the same hereby is, in all things denied upon the sole ground that, the action being to restrain the defendant from employing a particular system only, and over a part only of its road, the franchise was not involved, and there is, therefore, no basis on which an allowance can be estimated.” The complaint in this case asked no other relief than an injunction restraining the defendant from the use of this motive power on the part of the road running through Broadway. The defendant’s railroad and franchises connected with the same extended from South Ferry street in the city of Albany to West Troy, embracing several miles in extent not within the city of Albany. So that the action was not to restrain the defendant in the use of its franchise, but only to restrict its use upon Broadway in Albany. The subject-matter of controversy was not, therefore, the value of the plaintjff’s railroad or its franchise, and its value could not therefore be taken ás a basis upon which to estimate or compute an additional allowance. Nor do we think any estimated capacity of plaintiff’s railroad for earning money could be taken as a basis for such an estimate. The complaint makes no claim for damages, nor does the answer set up any claim for affirmative relief, but simply, with other defensive matters, denies that the plaintiff is entitled to an injunction. Any evidence upon the trial tending to establish the value of either franchise, or the amount of damage either company had sustained, would have been inadm.ssible, under the pleadings. There is no allegation in the complaint of the amount of damage suffered by the plaintiff by reason of the acts of the defendant sought to be restrained in this action, nor is there any allegation in the answer of the damage which has resulted or will result to the defendant by reason of the injunction prayed for in the complaint. In Conaughty v. Bank, 92 N. Y. 404, Bugbb, C. J., in discussing the question of additional allowance, sa> s: “In determining this question the pleadings-furnish the sole evidence as to what was the subject-matter in valved, and the value of such matter can be arrived at only by competent evidence tending to establish the fact.” In the case at bar the onlj question which could, under the pleadings, be litigated, was the right of the plaintiff to an injunction. The value of the franchise of the plaintiff wits in no way involved. If the plaintiff had succeeded in the action, it is not perceived upon what basis it could have demanded or received an additional allowance. Nor does it appear upon what basis the defendant can predicate a claim for an additional allowance upon the value of the subject-matter involved. What was involved? Certainly not the defendant’s tracks and cars; not its corporate franchise as a railroad company. If it is answered that its right to use electricity in some manner as a motive power was involved, then the answer is that the value of that right was not in issue underthe pleadings in this action. In the case of Dock Co. v. Libby, 45 N. Y. 504, which was an action for an injunction, Chief Justice Chukch, in discussing the question of an additional allowance under section 309 of the Code of Procedure, which was substantially like section 3253 of the present Code, uses this language: “The action was brought to restrain the carrying on of certain business, and for one thousand dollars damages, lío damages were recovered, but the action was sustained for the injunction. The question, therefore, is whether the subject-matter involved in the action was the value of the premises and machinery. I think not.” But it is urged that the defendant suffered loss by reason of the operation of the temporary injunction, and the proximate estimate of that loss is sought to be proved by affidavits used in this motion. As we have seen, that was not in issue by the pleadings in this action, and cannot, we think, be tried on this motion. Presumably the plaintiff gave a bund to protect the defendant against that loss, upon which the defendant, in a proper proceeding, may be indemnified. The statute makes no provision for protecting against such loss by any additional allowance of costs. We think that the learned judge at special term was right in holding that there is in this action “no basis on which an allowance can be estimated.” The order must be affirmed, with $10 costs and printing disbursements.

All concur. 
      
       Code Civil Proc. N. Y. § 3353, provides that in a difficult or extraordinary case the court may in its discretion award to any party an additional sum not exceeding 5 per cent. “ upon the sum recovered or claimed, or the value of the subj ect-matter involved. ”
     