Carucci v. City of Utica , 400 N.Y.S.2d 602 ( 1977 )

Judgment and order unanimously modified, on the law, in accordance with memorandum and, as modified, affirmed, without costs. Motions made upon argument of appeal denied as moot. Memorandum: Special Term ordered that respondent B & B Sanitation, Inc., pay counsel fees in the amount of $6,500 to petitioner. The qward was presumably based on petitioner’s claim that his efforts had created a fund for the City of Utica, out of which such fees could be awarded. (Gerzof v Sweeney, 22 NY2d 297.) Inasmuch as we affirm Special Term’s finding that both contracts awarded to respondent B & B Sanitation, Inc., were legally executed, and that respondent B & B was properly compensated by the City of Utica under such contracts, no fund has been created from which petitioner could be granted an award. Petitioner’s contention that he has "saved” the City of Utica money because Special Term ordered the termination of an emergency contract for collection of garbage is without merit. Such service will have to be provided by the city by other means so that there is no money "saved”, from which an award to petitioner could be made. (Appeals from judgment and resettled order of Oneida Supreme Court—art 78.) Present—Simons, J. P., Hancock, Jr., Den-man and Witmer, JJ.