
    Benton McConnell, App’lt, v. Manhattan Construction Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    Practice—Allowance—Limit of.
    In an action to set aside a conveyance on the ground of fraud, the plaintiff was the assignee of certain judgments against the defendant, amounting to $1,217.70. The complaint alleged the value of the property to be $180,000, with a surplus over all mortgages. The property was sold under foreclosure, and no surplus arising, the plaintiff had leave to discontinue upon payment of costs and an allowance of $250: Held, that the allowance could not exceed that authorized by law based upon the value of the plaintiff's recovery had the conveyance been set aside.
    Appeal from order imposing as terms upon which the plaintiff may discontinue this action, defendant’s costs to be taxed, and an extra allowance of $250.
    
      Philips & Avery, for app’lt; W. P. Martin, for resp’t.
   Van Brunt, P. J.

This action was brought to set aside a conveyance made by the defendant company to the defendant Hughes upon the ground that it was made with intent to hinder, delay and defraud creditors. The plaintiff was the assignee of certain judgments against the company, amounting' to the sum of $1,217.70, and at the time of the commencement of this action had executions outstanding in the hands of the sheriff upon said judgments. The complaint alleged the value of the property to be $180,000, with a surplus over all mortgages of $38,000, and that there were several mechanics’ liens and judgments against the company, aggregating several thousand dollars more. The premises having been sold under foreclosure and no surplus arising, the plaintiff had leave to discontinue the action upon payment of the costs and $250 allowance.

It is sought to sustain this allowance upon the ground that the action was brought in bad faith for the purpose of embarrassing the company, and that it broke down the company so that they were unable to carry through certain negotiations which they had for the termination of their difficulties. These facts, however, would not justify the court in granting an allowance beyond that authorized by law. The whole subject involved in the action was the value of defendant’s equity in the property in question provided such conveyance was set aside. That value could could not exceed the amount of the liens of plaintiff’s judgments, namely, $1,217.70. This was all that the plaintiff could possibly recover, and this therefore was all of which the defendant could be deprived; and as the plaintiff could not recover an allowance upon any greater basis, it is clear that the defendant has no greater rights.

It would seem, therefore, that the allowance in question was beyond that which the law authorized, and unless the same is reduced to sixty dollars by stipulation upon the ¡Dart of the defendants the order must be reversed, with ten dollars costs and disbursements, otherwise the order will be affirmed, without costs to either party.

Daniels and Brady, JJ., concur.  