Standard Trust Co. v. New York Cent. & H.R.R. Co.

• Citation: 178 N.Y. 407,70 N.E. 925
• Parties: STANDARD TRUST CO. v. NEW YORK CENT. & H. R. R. CO. et al.
• Decision Date: 03 May 1904
• Court: New York Court of Appeals

178 N.Y. 407

70 N.E. 925

STANDARD TRUST CO.

v.NEW YORK CENT. & H. R. R. CO. et al.

Court of Appeals of New York.

May 3, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by the Standard Trust Company, executor of Alfred M. Perrin, deceased, against the New York Central & Hudson River Railroad Company and others. From so much of a judgment of the Appellate Division (84 N. Y. Supp. 1147) as affirms that part of a judgment in favor of plaintiff which includes an additional allowance of $2,000 to plaintiff's attorney, defendants appeal. Reversed.

John F. Brennan and Charles C. Paulding, for appellants.

Paul E. De Fere, J. Addison Young, and William A. Moore, for respondent.

HAIGHT, J.

This action was brought to recover damages for negligently causing the death of the plaintiff's testator, which resulted from a collision between trains in the Park avenue tunnel in the city of New York. The trial of this action succeeded that of a number of other similar actions based upon the same collision. Upon the commencement of the trial it was stipulated on the part of the attorneys for the defendant that the accident which resulted in the death of the plaintiff's testator was caused by the negligence of the employés of the defendant, and without contributory negligence on the part of the decedent. After this stipulation was entered upon the minutes, the trial proceeded for the purpose of determining the amount of damages that the plaintiff had suffered, resulting in a verdict of the jury for the sum of $75,000. To this the trial court awarded the plaintiff's attorney an additional allowance of $2,000.

It is contended on behalf of the respondent that this court has no power to review the judgment as to the additional allowance, for the reason that such allowance was discretionary with the trial court. It is quite true that this court has no power to review discretionary orders, and consequently, in so far as the trial court had the power to grant an additional allowance, its exercise of such power is not subject to review here; but the question as to whether the trial court had the power or authority to grant any additional allowance is a question of alw subject to review in this court. This was expressly held in the case of Hanover F. Ins. Co. v. Germania F. Ins. Co., 138 N. Y. 252, 33 N. E. 1065, and in Conaughty v. Saratoga County Bank, 92 N. Y. 401. We are thus brought to a consideration of the provisions of section 3253 of the Code of Civil Procedure. It, among other things, provides that ‘in a difficult and extraordinary case (where a defense has been interposed in an action) * * * the court may also, in its discretion, award to any party a further sum,’ not exceeding 5 per centum, etc. It will be observed that, under the provisions of this statute, the case must be both difficult and extraordinary, and also that it must be a case in which there was a defense interposed. If the case lacks either of these three requirements it is not brought within the provisions of the Code, and consequently ...