
    The Hanover Fire Insurance Co., App'lt, v. The Germania Fire Insurance Co., Impl'd, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed May 2, 1893.)
    
    1. Costs—Extea allowance—Appeal.
    The propriety of an extra allowance under § 3252 of the Code may be reviewed by the general term on appeal from the judgment, and a formal exception need not be taken to enable that court to review the discretion or the legal right of the court below to make the award. And the court of appeals can, on an appeal from the decision of the general term, pass upon the question of the legal right involved.
    2. Same.
    An action was brought in equity to restrain defendant from interfering with ti±e closing up by one S. of the business of “ The New York Underwriters’ Agency,” pursuant to an agreement between that company and plaintiff. Defendant, in its answer, alleged that said name was used to represent the joint business of the two companies, and the joint property of both, and was worth $50,000, and was appropriated by plaintiff and S. This was denied in the reply, and although there was no evidence of the value of the right before the court, it granted defendant judgment, with an extra allowance of $2,000. Held, error; that as the value was not shown, and no evidence, admission or proof given from which the court could arrive at any conclusion as to value, no allowance could be made.
    Appeal from judgment of the supreme court, general term, first department, reversing so much of the judgment in favor of jilaintiff as adjudged that plaintiff recover an extra allowance of $2,000.
    This was an action in equity to restrain the defendant, the Germania Fire Insurance Company, from interfering with the closing up by one Stoddart of the business of “ The New York Underwriters Agency,pursuant to an agreement between that company and the plaintiff, the Hanover Fire Insurance Company. The Germania Company in its answer among other things alleged that “ The New York Underwriters Agency" was a name used to represent the joint business of the two companies, and was the joint property of both, and was of the pecuniary value of $50,000, and further alleged that the name had been appropriated by the plaintiff and Stoddart to a new business, in conjunction with the Citizens’ Insurance Company, without making any compensation to the Germania Company, whereby the latter company had been deprived of all use and benefit therefrom, and that its interest therein is being rendered valueless; and the answer demands affirmative relief by injunction against the Hanover Company and Stoddart
    The Hanover Company served a reply denying the allegations in the answer. The case came on for trial at special term, and upon the pleadings and proof of records and proceedings in former actions between the parties, and without any oral evidence, the case was submitted. The trial judge made findings of facts and law, and directed judgment to be entered for the plaintiff against the Germania Company, enjoining it from interfering with the closing up of the business of the “New York Underwriters Agency ” by Stoddart, and awarded costs against the Germania Company, and an extra allowance as follows: “And that the plaintiff have judgment for its costs, to be taxed, and two thous- and dollars as extra allowance.”
    Judgment having been entered pursuant to the direction of the special term, the Germania Company appealed to the general term from that part of the judgment awarding an extra allowance. The general term reversed the part of the judgment appealed from, for want of power in the special term to award an extra allowance, and from that order of reversal the Hanover Company appeals to this court. There was no evidence presented to the special term as to the value of the property right in the name “The New York Underwriters Agency,” outside of the pleadings.
    Ho formal exception was taken to the award of an extra allowance.
    
      George W. Cotterill, for app'lt; Ernest Hall, for resp't.
    
      
       Affirming 43 St. Rep., 454.
    
   Andrews, Ch. J.

We think the question of the power of the court to grant an extra allowance was brought before the general term by the appeal from that part of the judgment by which the award was made.

The granting of an extra allowance under § 3252 of the Code can never be demanded as a legal right, but is in the discretion of the court. Whether an allowance shall be made in cases coming within the section is a question which arises after the trial and determination of the issues. The court may determine the question upon the facts disclosed on the trial, or brought to its attention by affidavits. When an allowance is made it enters into the judgment and is collectible by force of the judgment.

The propriety of the allowance may be reviewed by the general term on appeal from the judgment, and we think it is not a case where a formal exception must have been taken to enable the general term to review the discretion or the legal right of the court below to make the award. And we are also of the opinion that this court can, on an appeal from the decision of the general term, pass upon the question of the legal right involved. The case is anomalous, but there seems to be no good reason why, for the purpose of reviewing the allowance, the same rule should not prevail as on appeals from orders in respect to the absence of an exception. The allowance is in substance an order incorporated in the judgment.

Upon the merits we are of the opinion that there was no basis in the facts before the trial judge for fixing an allowance in this case. The allowance to be made under § 3253 is a percentage on “ the sum recovered or claimed, or the value of the subject-matter involved.” The allowance in this case was based on the value of the right to the use of the name by the Germania Company. The answer in connection with the allegation that the name was the property of the two companies, alleges “ that the said name possessed and possesses a pecuniary value of $50,000.” The Germania Company based its demand of affirmative relief upon the allegation of a joint right to the use of the name, and that it had been deprived of the benefit thereof. The right to the use of the name “New York Underwriters Agency” was a “subject-matter ” involved in the issue presented by the Germania Company in its answer. But the difficulty in maintaining the award of the special term arises from the fact that there was no evidence of the value of the right before the court. The averment of value contained in the answer was denied in the reply. Upon the pleadings, therefore, the fact was as though no averment of value had been made. The averment on one side was neutralized by the denial on the other, and the pleadings contained the only information as to value before the court. If extrinsic proof had been given a different question would have been presented. It is not sufficient to sustain the allowance that the case was one where there may have been a pecuniary value to the “ subject-matter ” involved in the litigation. If the value was not shown and no evidence, admission or proof given from which the court could arrive at any conclusion as to value, no allowance could be made.

We think the order of the general term should be affirmed.

Order affirmed, with costs.

All concur.  