The City of New York, Appellant, v. The A. T. Stewart Realty Company, Respondent

The City of New York, Appellant, v. The A. T. Stewart Realty Company, Respondent. First Department, May 11, 1906. Extra allowance — when refused defendant in action by city to restrain erection of fixtures not fireproof. When in an action by a pity to restrain the defendant from putting in fixtures not fireproof,'the defendant is successful in vacating the temporary injunction ' .Upon-the pleadings, jxo extra allowance is proper as the case is not difficult or extraordinary within the meaning of section 3353' of the Code of Civil Procedure.' Nor does the alleged value of. the fixtures the defendant'would ■ have been' compelled to remove liad the 'plaintiff been successful, and a loss by inability to carry on business for an indefinite period, furnish a basis whereby the court can- determine the, value, of the subject-matter involved within, the" meaning of said section. ■ '. Appeal-by. the plaintiff, The City of .He.w York, from an order of the. Supreme Court, "made at the New York Special Term and entered in the office of the clerk of the county'of New York on the 17th day of .March, 1906. John P. O'Brien, for the appellant. Louis Frankel, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : This appeal is from an order- allowing costs as in an action, and, in addition thereto; granting an extra allowance of $500 as a condition of permitting plaintiff to discontinue the action. There is no. basis for the extra allowance. The evidence presented' bearing on that subject is - that a large part of the fixtures was in the building and the balance “ ready for delivery on receipt of notice from the defendant; ” that these fixtures — those in the building and those to be thereafter delivered — were of the contract price of $196,000, anil had plaintiff succeeded in the action — which was to enjoin the defendant from maintaining fixtures in the building and to compel it to remove those already placed therein unless the same were constructed of fireproof wood, the defendant “ would have suffered by reason of the increase in the cost of such fixtures * * * very considerable ; " that if' the defendant had been required to take out the fixtures placed in the building and to throw out the fixtures contracted for, it would have suffered a loss of $160,000, and in addition been unable for an indefinite period to carry on business; and that defendant would have suffered “ primarily the "loss of the fixtures already in the;, .place and contracted for and which were ready to be delivered.” No facts are stated from which the court could determine “ the value of the subject-matter involved " as required, in order to justify an extra allowance. (Code Civ. Proc. § 3253.) The statement that if the plaintiff had.been successful, defendant would have suffered not only the loss of $160,000, and “primarily " the contract "price of all the fixtures, but would have been unable for an indefinite period to carry On any business, is a conclusion not sustained by any of the facts set.,forth. In addition to this the action was not a difficult and extraordinary one, within the meaning of the section of the Code above cited, which authorizes the granting of an extra allowance. The action was barely at issue and all that was done was to interpose an answer, move to vacate the. temporary injunction which had been granted, and argue the appeal from an order denying the motion. Tlie order appealed from, therefore, should be modified by striking out the provisions thereof granting the' $500 extra allowance, and as thus modified the same is affirmed, without costs to either party. Present — O’Brien, P. J., Ingraham, McLaughlin, Clarke and Houghton, JJ. Order modified as stated in opinion and, as modified, affirmed, without costs. Order filed.