Hanover Fire Ins. Co. v. Germania Fire Ins. Co.
| Decision Date | 02 May 1893 |
| Citation | 33 N.E. 1065,138 N.Y. 252 |
| Parties | HANOVER FIRE INS. CO. v. GERMANIA FIRE INS. CO. et al. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, general term, first department.
Action by the Hanover Fire Insurance Company against the Germania Fire Insurance Company and another. From an order of the general term (18 N. Y. Supp. 50) reversing an allowance of extra costs to plaintiff, plaintiff appeals. Affirmed.
The other facts fully appear from the following statement by ANDREWS, C. J.:
This was an action in equity to restrain the defendant the Germania Fire Insurance Company from interfering with the closing up by one Stoddart of the business of the New York Underwriters' Agency, pursuant to an agreement between that company and the plaintiff, the Hanover Fire Insurance Company. The Germania Company in its answer, among other things, alleged that the New York Underwriters' Agency was a name used to represent the joint business of the two companies, and was the joint property of both, and was of the pecuniary value of $50,000; and further alleged that the name had been appropriated by the plaintiff and Stoddart to a new business, in conjunction with the Citizens' Insurance Company, without making any compensation to the Germania Company, whereby the latter company had been deprived of all use and benefit therefrom, and that its interest therein is being rendered valueless; and the answer demands affirmative relief by injunction against the Hanover Company and Stoddart. The Hanover Company served a reply denying the allegations in the answer. The case came on for trial at special term, and upon the pleadings and proof of records and proceedings in former actions between the parties, and without any oral evidence, the case was submitted. The trial judge made findings of facts and law, and directed judgment to be entered for the plaintiff against the Germania Company, enjoining it from interfering with the closing up of the business of the New York Underwriters' Agency by Stoddart, and awarded costs against the Germania Company, and an extra allowance as follows: ‘And that the plaintiff have judgment for its costs, to be taxed, and two thousand dollars as extra allowance.’ Judgment having been entered pursuant to the direction of the special term, the Germania Company appealed to the general term from that part of the judgment awarding an extra allowance. The general term reversed the part of the judgment appealed from, for want of power in the special term to award an extra allowance, and from that order of reversal the Hanover Company appeals to this court. There was no evidence presented to the special term as to the value of the property right in the name the New York Underwriters' Agency, outside of the pleadings. No formal exception was taken to the award of an extra allowance.
George W. Cotterill, for appellant.
Ernest Hall, for respondents.
ANDREWS, C. J., (after stating the facts.)
We think the question of the power of the court to grant an extra allowance was brought before the general...
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