
    Camille Weidenfeld, Appellant, v. Frank P. Byrne and Others, as Executors, etc., of John Byrne, Deceased, Respondents, Impleaded with Thomas H. Hubbard.
    Second Department,
    June 8, 1906.
    Costs — when extra allowance hot imposed as condition on discontinuance in action for accounting.
    The payment of an extra allowance should not he imposed on the plaintiff as a condition for discontinuing an action for an accounting when no specific .amount is demanded by the plaintiff, for there- is no basis on which, the court can compute the value of the subject-matter involved.
    Appeal" "by the plaintiff, Camille Weidenfeld, from an order of the Supreme-Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the" 20th day of June, 19051
    
      Charles L. Craig [Edward Lauterbach and Henry L. Scheuerman with him on the brief], for the appellant.
    
      Edward J. McGuire, for the respondents.
   Hirschberg, P. J.:

This is an appeal from an order granting leave to'the plaintiff to discontinue the action upon conditions which include the payment to the defendants of the sum of $500 as an extra allowance.

The action is for an accounting with respect to the-profits and losses in "certain speculative transactions, and fór .the- recovery of such sum as may be found due to -the plaintiff' on such accounting. No specific amount was demanded An - the complaint.,. While it is true that the value; might be .ascertained, of certain securities and other things of value in respect to which the speculations are alleged to have taken ¡dace, we do not think that they can be regarded as the subject-matter of the action for the purpose'of computing an extra allowance under the provisions of section 3253 of the Code of Civil Procedure; As the case was presented to the learned Special Term, there was no legitimate basis for the computation of such allowance, the value or ariiount of the plaintiff’s net interest in the result of the speculations not having been disclosed by an accounting (see Coleman v. Chauncey, 7 Robt. 578 ; Hagenbuchle v. Schultz, 69 Hun, 183; Proctor v. Soulier, 8 App. Div. 69 ; Laird v. Littlefield, 34 id. 43 ; People v. Page, 39 id. 110 ; Struthers v. Pearce, 51 N. Y. 365 ; Weaver v. Ely, 83 id. 89 ; Conaughty v. Saratoga County Bank, 92 id. 401), by affidavit or by the pleadings.

The order appealed from should be modified by striking out the provision requiring the payment by the plaintiff of the "extra allowance, and as modified affirmed, without costs.

Gaynor and Rich, JJ., concurred; Woodward and Miller, JJ., dissented.

Order modified by striking out the provision requiring the payment by the plaintiff of the extra allowance, and as modified affirmed, witho.ut costs. ‘  