
    Gray v. Manhattan Railway Co.
    (New York Common Pleas
    General Term,
    April, 1893.)
    In an action against an elevated railway company, the complaint asked for injunctive relief and for such sum as may he found due to plaintiff upon an accounting. Plaintiff failed to recover past damages, but an injunction was awarded to him, to be obviated upon payment of §8,000. Judgment was reversed at General Term and a new trial granted. On ■ appeal to the Court of Appeals, plaintiff stipulated for judgment absolute in defendants' favor, if the order granting a new trial was affirmed. The order was affirmed, and defendants obtained an order granting an extra allowance of five per cent on the §8,000. Held, that, as the facts presented afforded no basis for an extra allowance, the order granting it should be reversed.
    
      Appeal from an order made at Special Term, granting the defendants an extra allowance. The opinion states the facts.
    
      Edwa/rd 0. Perkins, for plaintiff (appellant).
    
      Ernies do Papadlo, for defendants (respondents).
   Giegerich, J.

This is an appeal from an order awarding to the defendants an allowance of $400 in addition to the costs of this action. The action was brought to restrain the maintenance and operation of the elevated railroad in front of the plaintiff’s premises, situate at the corner of Ninth avenue and Seventy-first street in the city of New York. The relief demanded was to enjoin the defendants from operating then railway in front of or past the plaintiff’s premises; for an accounting to ascertain the damages already accrued, and for judgment for the amount of the damage. The action was tried at an equity term, where the plaintiff failed to recover any past damages; but an injunction was awarded to him, to be obviated upon payment of .$8,000, and judgment was' entered accordingly. On appeal to the General Term of this court, the judgment was reversed and a new trial granted. The plaintiff then appealed to the Court of Appeals and gave a stipulation for judgment absolute in defendants’ favor in case the order was affirmed. The Court of Appeals affirmed the order on the ground of errors in the admission of evidence. 128 N. Y. 499. The defendants thereafter applied for “ an extra allowance to the costs of five per cent upon the amount claimed in the complaint herein,” and an additional allowance of $400 was awarded, and from that order an appeal was taken. The question is thus presented whether the granting of an allowance was justified under the circumstances.

It is claimed by counsel for the respondents that the complaint (paragraph 13) contains a distinct allegation of damages amounting to $15,000. Although it is therein alleged that the value of the plaintiff’s rights has been depreciated by the building of the road, the damages so alleged to have been suffered, however, are not claimed; and the allegation so made is made simply as a basis for injunctive relief.

The complaint merely seeks and asks for an injunction, and for such sum as may be found due to the plaintiff herein on an accounting. In this aspect, there is no money basis on which to calculate a percentage. Coleman v. Chauncey, 7 Robt. 578; Spofford v. Texas Land Co., 42 N. Y. Super. Ct. 228; Conaughty v. Bank, 92 N. Y. 401; Lyon v. Belchford, 8 Civ. Proc. Rep. 229.

The respondents contend further, that by procuring an extra allowance of $400, and entering judgment for it, the appellant “ is estopped from denying that it has a legitimate basis in the value of the subject-matter of the litigation.” The record, however, shows that the court below did not allow any past damages, but awarded an injunction to be obviated on payment of $8,000.

It also appears from the findings made upon the trial of this action, that “said’premises would not be worth as much as they are now, had the said railroad and station not been built.” And the court of last resort decided that the value of the easement taken by the defendants was merely nominal.

It is manifest that the facts in this case as presented on this appeal do not afford the basis of an extra allowance, and for the reasons above stated the order appealed from should be-reversed, with costs.

Bischoff and Pryor, JJ., concur.

Order reversed, with costs.  