
    THEODORE C. WEEKS, Respondent v. THE SILVER ISLET CONSOLIDATED MINING AND LANDS COMPANY, et al., Appellants.
    
      Extra Allowance, should be denied where it does not appear that the right which plaintiff sought to enforce was of any value and therefore there was no fact which could be used as a basis for computation upon which to predicate an extra allowance.
    Before Freedman and Trtjax, JJ.
    
      Decided June 27, 1890.
    Appeal from an order denying a motion for an extra allowance of costs to defendants.
    
      Stickney & Shepard, attorneys, and Nelson S. Spencer of counsel, for appellants, argued :—
    I. The defendants are entitled to an allowance (in the discretion of the court) of “a sum not exceeding five per centum upon the sum recovered or claimed or the value of the subject matter involved.” 
      (Code of Civil Procedure, § 3253). The subject matter involved in this action was the 6,523 shares of forfeited stock, once the property of the plaintiff The actual market value of this stock was .indeterminate, but it is certain that its value, for the purposes of this motion, was at least $15,267, the amount of the unpaid assessments. It must be assumed that the stock had a value in excess of that sum, or the plaintiff would not have commenced this action, and in his complaint offered to pay it, to recover the stock. Nor would the defendants have defended the action if they did not consider the stock worth more than the $15,267 which the plaintiff offered them. The judgment of the court fixed at least that value upon the stock by providing that the plaintiff must pay that sum in order to reacquire the stock. The stock then was worth at least $15,267, and upon that sum the defendants are entitled to an allowance.
    II. The plaintiff in bringing the action took a position as to the value of the stock from which he cannot now retreat. He asked to be relieved from the forfeiture on payment of the unpaid assessments on his stock. The amount of those unpaid assessments was fixed. In the language of Judge Danforth (Adams v. Arkenbrugh, 106 N. Y. 615) : “It is his statement of the amount involved in the action,” and “itis not for him to say that this notice is a nullity.”
    III. In fact, it must be assumed that the value of the subject matter of the action was $163,075. The plaintiff’s forfeited stock was the subject matter. There were involved in the action 6,523 shares of this stock of the par value of $25 each, or a total of $163,075; This value the court will presume, in the absence of other testimony, to be their real value. It is on this sum that the defendants are really entitled to have the allowance computed. But the defondants are willing to waive this presumption and accept an allowance on the actual sum of money which the plaintiff, if successful, was by the judgment obliged to pay to recover his stock. Smith v. Baker, 42 Hun, 504, 507 : Daniels, J.: “ It may probably, in the absence of any proof, be presumed that the shares were of their face value, for they would ordinarily represent that amount of the capital stock of the bank issuing them, which, if it complied with the law, as it is to be presumed it had, would give them this extent of value. But the court could not presume them to be worth more than that sum.” In Mingay v. Holly Manufacturing Company, 99 N. Y. 270, the subject matter involved was the validity of a contract. The court say : “ A pecuniary right was directly involved in the action and the value of that right was, we think, the basis for an allowance under the last clause. It is immaterial that the form of the action and the relief sought would not authorize a money judgment in favor of either party. * * The real question litigated was whether the Holly company was entitled to enforce the contract * * and, its right having been established, the contract price for the purpose of computing the allowance, was, we think, the subject matter involved.” Similarly in this case the real question was whether the company was entitled to insist upon its forfeiture of the plaintiff’s stock for non-payment of assessments. Its right so to insist was established and the amount of the assessments unpaid, for which that forfeiture was made, was at least the value of the subject matter involved.
    
      S. A. & D. J. Noyes, attorneys, and Peter B. Olney of counsel, for respondent.
   By the Court.—Truax, J.

The motion for an extra allowance was denied upon the ground that it did not appear that the right which plaintiff sought to enforce was of any value and, that, therefore, there was no fact which could be used as a basis for computation upon which to predicate an extra allowance. The only allegation in the printed papers bearing upon the question of the value of the subject matter involved in the action, is the allegation that the action was brought to procure a judgment allowing the plaintiff to redeem from forfeiture certain stock of the defendants upon payment of the sums due thereon for unpaid assessments, and that the amount so due was at the time of the trial $15,267.

We are of the opinion that this is not evidence that the stock was worth the sum of $15,267. It may well be that the stock had been assessed for more than its value. We have not the pleadings before us, and we cannot say what the allegations in the pleadings were, nor can we say whether the plaintiff was estopped from denying that the stock was of the value above specified.

Order affirmed with costs.

Freedman, J., I concur in result.  