
    Michael Francis Maloy, App’lt, v. The Associated Lace Makers’ Co. et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    Costs—Extra allowance—Code Civ. Pro., §§ 3252, 3253.
    The action was brought to set aside as fraudulent a deed of land alleged to be partnership property made by the trustee, who held title for the firm, to a corporation controlled by plaintiff’s former partner. Held, that, although the title to real estate may in certain sense be involved, the real controversy concerned only plaintiff’s interest therein, and as there was no proof as to the value of such interest there was no basis for an extra allowance.
    Appeal from order denying plaintiff’s motion for an extra allowance.
    Action to set aside as fraudulent a deed of real estate made by one Winslow and wife to the Associated Lace Makers’ Company. The complaint alleges that plaintiff and defendant, Duden, had. been partners in business; that the premises in question were bought with partnership funds, the title of which was taken in Winslow’s name, who was to hold it as trustee for the firm; that the firm had dissolved; that the corporation had never been legally incorporated, but was really only another name for the defendant, Duden, and that the conveyance was part of a scheme to defraud plaintiff. The plaintiff recovered. No proof was given of his interest in the premises.
    
      James M. Lyddy, for app’lt; Henry Y. Stillman, for resp’ts.
   Pratt, J.

Although the title to the real estate may, in a certain sense, have been involved in the action, the real controversy concerned only the plaintiff’s interest therein. Nothing appears in the case that enables the court to know the value of such interest. Probably no one can tell the amount until the close of the partnership accounting.

On that state of facts the trial judge could not determine what amount was in controversy, and consequently had no basis upon which to fix an allowance.

The litigation was difficult, and it is to be regretted that its. weight must be principally borne by the successful party.

We see no way to any different result on the papers before

us.

The order must be affirmed, but without costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  