
    The Hanover Fire Insurance Co., Resp’t, v. The Germania Fire Insurance Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Costs—Extra allowance—Subject matter involved.
    A complaint alleged that the plaintiff and defendant agreed to establish an underwriters’ agency to be conducted by one Stoddard, who was also to close the matter when the agreement, expired; that it had expired, but that the defendant obstructed Stoddard’s acts in settling .up the business. It demanded specific performance and an injunction from interference by the defendant with Stoddard. No money judgment was asked, and upon the trial the relief was only a permanent injunction. Feld, that there was nothing upon which an extra allowance could be based, and that the court had no power to grant one.
    2. Appeal—Questions involved.
    An appeal from a judgment brings up on the face of the record a question of power, and the court will examine it, although no exceptions were taken to findings which embodied the unauthorized act.
    Appeal by the defendant, The Germania Fire Insurance Company, from so much of the judgment entered in favor of the plaintiff as adjudges and decrees that the plaintiff recover of said defendant an extra allowance of $2,000.
    
      George W. Cotterül, for resp’t; Ernest Hall, for app’lt.
   Lawrence, J.

This is an appeal by the defendant, the Ger-mania Fire Insurance Company, from so much or such part of .the judgment entered in favor of the plaintiff against the defendant as grants to said plaintiff an allowance of two thousand dollars ($2,000) in addition to costs.

The complaint sets forth that the plaintiff and defendant companies entered into an agreement whereby they formed the Underwriters’ Agency, to be carried on under the management of the defendant, Alexander Stoddard, of which the defendant Kahl was appointed treasurer, and which agreement terminated by its terms on the 31st of December, 1888, and by the terms of which agreement the business of the agency was to be wound up upon the termination of the contract under the direction and management of the general agent, unless both of the contracting parties object to his so acting; that the defendant, Alexander Stoddard, is the only person who can be procured for the purpose of winding up that business without great detriment to the interest of the parties; that, notwithstanding said agreement, the defendant-company has hindered, obstructed and continues to hinder and obstruct the said Stoddard in closing up the said business, and demands judgment that the defendant company specifically perform said agreement, and be enjoined and restrained from in any manner preventing or interfering with the closing up by said Stoddard of the business 'of said agency, or with the assets, money, property, matters, or any of them pertaining to, the liquidation or closing up of said business, and from appointing or continuing or otherwise placing any other person other than the said Stoddard to act in and about the liquidation, settling up or closing up of the said business, and that the said John E.. Kahl be required, by the mandate or order of this court, to obey, honor and recognize all the acts of said Stoddard in and about the closing up of the said business, and that he be restrained from preventing and obstructing the closing up of the same, and that plaintiff have such other and further relief as to the court may seem just and equitable, together with the costs of the action.

The answer of the defendant, while admitting the malting of the agreement set forth in the complaint, and the employment of Stoddard as general agent, denies any violation of the agreement on their part, and sets up as a separate defense, that the general agent, during the continuance of the Underwriters’ Agency, composed of the plaintiff and defendant companies, and in violation of his agreement with them, undertook the formation of another Underwriters’ Agency of the same character and' to do business in the same territory as the said former agency, between the Hanover and Citizens’ Companies, to the exclusion of the defendant company, and for that purpose made use of the name, agents, facilities, etc., of said agency, and alleges that by reason of said act the said Stoddard was not a fair, impartial and fit person to be entrusted with the management and winding up of the affairs of said agency. The answer demands judgment that the complaint may-be' dismissed, and that said Stoddard may be declared to have violated his agreement and be enjoined from interfering with the property or affairs of said Underwriters’ Agency,, and that he and the plaintiff be enjoined from using the name- of the Hew York Underwriters’ Agency in conjunction with any one excepting the defendant company.

An injunction during the pendency of the action was granted, upon motion by the -plaintiff, which, upon appeal, was affirmed by the general term of this court, and upon the trial it was determined that the plaintiff was entitled to the. injunction demanded in the complaint.

It will be observed that in the complaint no pecuniary judgment is demanded against the defendants, or either of them. There is an allegation in the fifth paragraph of the complaint that the business carried on under the agreement became large and profitable, and there is an affirmative allegation in the thirteenth paragraph of the defendant’s answer that the name of the Hew York Underwriters’ Agency possessed and possesses a pecuniary value of at least $50,000.

As was before stated, the special term, in rendering judgment, determined that the plaintiff was entitled simply to an injunction, giving no pecuniary judgment, but it awarded to the plaintiff, in addition to the costs, an extra allowance of two thousand dollars ($2,000), and from that provision in the judgment the defendant, The Germania Fire Insurance Company, has appealed.

It has frequently been determined that where no sum of money is claimed in the pleadings or allowed to the plaintiff, there is nothing upon which an extra allowance can be based, and that the court has no power to grant it.

In Conaughty v. The Saratoga County Bank, 92 N. Y., 401, it was held that under the provisions of the Code of Civil Procedure, § 3253, in reference to extra allowance in an action wherein rights of property are involved, and a pecuniary value may be predicated of the subject matter, the importance of the litigation in any other than in its pecuniary aspect affords no basis for the allowance; and when no money judgment .is asked or rendered, and the subject matter involved is not capable of a money value, or the value is not shown, the allowance is not authorized. The term, “subject matter involved,” refers simply to property or other valuable things, possession, ownership or title to which is to be determined by the action. It does not include other property, although it may be directly or remotely affected by the result.

In this case, no evidence whatever was given upon the trial as to the pecuniary value of the name, the New York Underwriters’ Agency, and no pecuniary judgment was rendered in favor of the plaintiff and against the defendant. The case therefore seems to come within the decision in Conaughty v. The Saratoga County Bank, supra, and numerous cases cited in the opinion of the court in that case.' It is said, however, by the respondent’s counsel in his points, that as the allowance and the costs were inserted in the findings of the learned justice, and as no specific exception was taken to the findings, in which such allowance was contained, and the appeal being simply from that part of the judgment which awards the allowance, this court has no power to review the determination of the court below in respect thereto. We cannot accede to this view. The cases relied upon by the counsel for the respondent are not cases, as we understand them, in which the court did not possess the power to make tile determination appealed from. They were cases which arose either upon an erroneous reception or rejection of evidence on the trial, or in which the question determined was one within the discretion of the court, in which case the determination could not be reviewed without an appropriate exception. Here, if the views above expressed are correct, the court had no power, under the provisions of the Code, to grant any allowance whatever, and there was no basis whatever upon which it could be determined, even if the court had the power to grant an allowance, whether it exceeded the limitation prescribed by the Code. The case of Murray v. Church, 1 Hun, 49-51, relied upon by the respondent’s counsel, was a case where the allowance was within the descretion of the court, and in that case the court held that there was in the case nothing showing that the discretion of the court was improperly exercised, but if there were anything of that nature in the case, it would not aid the appeal, because no exception was taken and presented for consideration. That case was different from the case at bar, because, as already stated, in the case at bar the question is one of power and an appeal from the judgment brings up upon the face of the record the question of power which this court has the right to examine into and refuse.

The case of Munro v. Smith, 23 Abb. N. C., 275; 25 St. Rep., 624, is not in conflict with these views, inasmuch as there it appered by the plaintiff’s affidavit, which was uncontradicted, that he had spent fifty thousand dollars ($50,000) in advertising articles on which he used the trade-mark, and that the right to the exclusive use of it belonged to him.

Mr. Justice Brady, delivering the opinion of the court in that case, distinguishes it from the case of Coates v. Goddard, 34 Superior Court (J. & S.), 118, on the ground that in the latter case plaintiff had not recovered°any judgment but one directing a perpetual injunction. The same distinction exists in the case before us.

Eor these reasons we are of the opinion that so much of the judgment below as awarded an allowance of two thousand dollars to the plaintiff should be reversed, with costs and disbursements, and motion denied.

Van Brunt, P. J., and O’Brien, J., concur.  