
    JAMES A. HAMILTON, et al., as Trustees, etc., Appellants, v. THE MANHATTAN RAILWAY COMPANY, et al., Respondents.
    
      Costs, extra allowance of, discretion of the Court in regard to allowance.
    
    The plaintiffs moved for an extra allowance in addition to costs, upon the amount of past damages and the amount of damages to the fee value, if the defendants paid the same to avoid the injunction granted, and the court made an order giving them five per cent on the amount of past damages as found, and denied the motion otherwise, and plaintiffs appealed from so much of the order as denied a part of their motion.
    
      Held, That as an order granting or refusing an extra allowance rests largely in the discretion of the trial judge, if it is to be reviewed at all, the whole of the order should be presented for review, so that the exercise of discretion can be reviewed upon all the facts that bear upon it. The determination of the court below as to the amount of allowance to be granted, was within the discretion of the court.
    Before Freedman and Ingraham, JJ.
    
      Decided February 6, 1890.
    • Appeal from so much of an order of the special term • as denies the motion of plaintiffs for an extra allowance in addition to costs.
    
      Burnett ' & Whitney, attorneys, and Edward B. Whitney of counsel, for appellants, argued :—
    I. The order is appealable, since it denies the application on grounds barring the exercise of discretion. Adams v. Arkenburgh, 106 N. Y. 615 ; Mingay v. Holly Manufg. Co., 99 Ib. 270; Burton v. Tremper, 10 State Rep. 629; Munro v. Smith, 25 Ib. 624.
    II. It is not necessary that there should be a recovery of the value of the easements taken. If the value is proved, an allowance is properly granted upon a decision even absolutely enjoining defendant from interference with the easements. Such was the case in Lattimer v. Livermore, 72 N. Y. 174, 183, the leading authority upon this point. That action was based upon breach of a covenant for “ air, light and vision,” very analogous in that respect to the case at bar. In Munro v. Smith, 25 State Rep. 624, the judgment enjoined infringement of a trademark, and the value of the trade-mark was held a proper basis for allowance. In Adams v. Arkenburgh, 106 N. Y. 615, one half the value of the assets ofo a partnership as alleged in the complaint was held a proper basis in an action for injunction and accounting, the complaint having been dismissed. In the two latter cases the decision was a reversal of the court below. In the court of appeal’s decisions denying allowances there was no evidence of the value of the subject matter. Co-naughty v. Saratoga Bank, 92 N. Y. 401; People v. Genesee R. R. Co., 95 Ib. 666.
    III. The value of the subject matter of the judgment for injunction is determinate and susceptible of liquidation. Lattimer v. Livermore, 72 N.Y. 174, supra. This is necessarily implied in the decisions which permit the defendants by taking proper proceedings to acquire the easements taken by them, such as Matter of New York Elevated Railroad Co., 70 N. Y. 327, 354, 360.
    IV. To grant the allowance in this instance would be to' follow the general practice of the courts in these elevated railroad cases. We are informed by judges of the court of common pleas that allowances are there always granted upon the easement valuation without question. This question was argued between the undersigned and Mr. Davies, as counsel for the present defendant in the case of Watson v. Manhattan Railway Co. in 1885, and after deliberation was decided in plaintiff’s favor by Mr. Chief Justice Sedgwick; and although the case was appealed on other points (53 Super. 137), no appeal was taken on this point. A similar allowance was granted in the N. Y. National Exchange Bank Case, supra, and never questioned, although that case went to the court of appeals. e
    
      Davies & Rapallo, attorneys, and Edward S. Rapallo and Brainard Tolies of counsel, for respondents, argued:—
    I. No extra allowance could be given based upon the “loss of fee value.” There was, as the .learned trial judge said, no recovery for “ loss of fee value,” and there could be none. Pond v. Metropolitan El. R. Co., 112 N. Y. 186. But there is another reason, not less conclusive, why no extra allowance could be computed upon the “ loss of fee value.” Under the decision of this court in Carter v. N. Y. Elevated R. Co., just handed down, it is clear that there had never been any judicial determination as between these parties of the amount of “ loss of fee value.” It is true that the decision contains such a finding, but it was not an issue in the case which the defendants had a right to have fairly tried on legal evidence. On the contrary, the fixing of any condition for avoiding the injunction was, in the language of this court in the Carter case, “ gratuitously made as to the defendants and was allowed for the sake of third parties.”
    II. No extra allowance could be given based upon the value of the subject matter of the injunctive relief. The court was not asked by the plaintiff’s notice of motion to grant an extra allowance on this basis, but as the impossibility of doing so is referred to in the order it is perhaps open to discussion upon this appeal. Section 3253 of the Code provides that in difficult and extraordinary cases where a defence has been interposed an extra allowance may be granted not exceeding five per cent. “ upon the sum recovered or claimed or the value of the subject matter involved.” It has already appeared that an allowance was actually granted equal- to five per cent, on the whole sum recovered. The claim which we now anticipate is that the trial judge should be com-polled to fix a value upon the easements which constitute the subject matter of the injunctive relief. Lattimer v. Livermore, 72 N. Y. 174. The “ loss of fee value ” consists of two elements ; first, the value of the easements taken ; and, second, the depreciation of the remainder of the plaintiffs’ estate by reason of the deprivation of the easements. Under the decision in the Carter case the court was not required to find, upon legal evidence as between these parties, the amount of loss of fee value ; much less was it required to find, upon any of the main issues in the action, the value of the easements for the protection-of which the injunction was to be granted. It has been, many times decided that in order to afford a basis for an extra allowance the subject matter of the litigation must not only have a pecuniary value, but that value must be shown as a fact by the evidence. Atlantic Dock Co. v. Libby, 45 N. Y. 499 ; Heilman v. Lazarus, 90 Ib. 674 ; Conaughty v. Saratoga Co. Bank, 92 Ib. 401; Weaver v. Ely, 83 Ib. 89 ; Adams v. Arkenburgh, 106 Ib. 615 ; Coates v. Goddard, 34 N. Y. Super. 128; Spofford v. Texas Land Co., 41 Ib. 428 ; Palmer v. Dewitt, 42 How. 466 ; Coleman v. Chauncey, 7 Robt. 578 ; Gray v. Robjohn, 1 Bosw. 618 ; Voorhis v. French, 47 N. Y. Super.Ct. 364; Musgrave v. Sherwood, 29 Hun, 475; People v. Giroux, 29 Ib. 248; People v. Albany, etc., R. Co., 5 Lans. 25; Munro v; Smith, 25 N. Y. St. Rep. 624.
   By the Couet.—Fbeebman, J.

This action was brought in equity for an injunction and damages on account of the interference by defendants with easements belonging to certain pieces of property of the plaintiffs. The trial of the issues resulted in the recovery by plaintiffs of the sum of $8,750, for past damages with costs, and the award of an injunction which was not to become operative if the defendants should pay the further sum of $8,500, for loss of fee value. The plaintiffs then moved for an extra allowance in addition to costs and the court made an order giving them five per cent, on the amount of past damages as found and denying the motion otherwise. The plaintiffs appeal from only so much of the order as denies the remainder of their motion. In other words they want to retain all the benefits and to get more. Such a .practice should not be encouraged. As an order granting or refusing an extra allowance rests largely in the discretion of the trial judge, if it is to be reviewed at all the whole of the order should be presented, so that the exercise of discretion can be reviewed upon all the facts that bear upon it. The reasons given by the learned chief judge on making the order in this case, do not amount to a denial of power to grant more than was granted, but consist of considerations of an equitable character. He may have been mistaken as to their force, but that does not help the plaintiffs here. If he could have been persuaded to grant something based on loss of fee value, he might not have granted as high a percentage as he did on the amount representing past damages.

The order should be affirmed with ten dollars costs and disbursements.

Ingraham, J. (concurring).

I concur with Judge Freedman that the order appealed from should be affirmed. The order does not state that the motion for an extra allowance on the amount of the fee value of the plaintiffs’ property was denied on the ground that the court had no power to grant it. The denial is based upon the ground that there had been no recovery of the amount of the value of the fee, and that the value of the subject matter of the judgment for injunction is indeterminate and unsusceptible of liquidation.

There is no denial here of the power of the court to grant an allowance where the value of the subject matter of the judgment for injunction is capable of exact determination, but that for some, reason not stated the trial judge was unable to determine it in this action. The determination of the court below as to the amount of allowance to be granted was in the discretion of the court, and I see nothing in the record that requires us to review that determination.

The order appealed from should, therefore be affirmed with $10 costs and disbursements.  