Gilbert M. Husted, Appellant, v. David Thomson, as Trustee of the Estate of Benjamin Lord, Deceased, Respondent, Impleaded with Another

Gilbert M. Husted, Appellant, v. David Thomson, as Trustee of the Estate of Benjamin Lord, Deceased, Respondent, Impleaded with Another. Additional allowance—when no proper basis therefor is shown. An action “ brought to obtain'some sort of relief in respect to a paper in the form of a general release which had been executed by the plaintiff, including an injunction against its use,”'affords no proper basis for the granting of an additional allowance. Appeal by the plaintiff, Gilbert M. Husted, 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 7th day of February, 1899, granting the defendant David Thomson, as' trustee of the estate of Ben jamin Lord, deceased, an extra allowance, A. Edward Woodmff, for the appellant. George Eutnam, Smith, for the respondent. [MAJORITY — O’Brien, J. :] O’Brien, J. : In Hanover Ins. Company v. Germania Ins. Company (63 Hun, 275; affd., 138 N. Y. 252) it was said: “ It has frequently been determined that, where no sum of money is claimed in the pleadings-or allowed to the-plaintiff, there is nothing.upon which an extra allowance can be based and that the court has- no power to grant it.” The statement as to the nature of this :action in the affidavit of the defendant’s attorney is, that it “ was brought to obtain some sort of relief in respect to a paper in the form of a general release which had been executed by the plaintiff, including an injunction against its use.” Taking this statement as correct and with the most favorable view of the nature of the action, it is clear that there was involved therein no proper basis for an .allowance. No subject-matter of money value was involved and, therefore, - there was no basis upon which to fix an allowance. We think the order appealed from should be modified by striking out the provision granting the éxtra, allowance, .with ten- dollars -costs and disbursements of this appeal to the appellant. Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred, ■ Order modified by striking out the provision granting extra allowance, with ten dollars costs and disbursement's of appeal to the appellant.