Hamilton v. Manhattan Railway Co. , 24 Abb. N. Cas. 156 ( 1889 )

Freedman, J.

This action was brought in equity for an injunction and damages on accoiint of the interference by defendants, with easements belonging to certain pieces of property of the plaintiffs. The trial of the issues resulted in the recovery by plaintiffs of the sum of $8,7*50 for past damages with costs, and the award of an injunction which was not to become operative if the defendants should pay the further sum of $8,500 for loss of fee value. The plaintiffs then moved for an extra allowance in addition to costs, and the court made an order giving them five per cent, on the amount of past damages as found, and denying the motion otherwise. The plaintiffs appeal from only so much of the order as denies the remainder of their motion. In other words they want to retain all the benefits and to get more. Such a practice should not be encouraged. As an order granting or refusing an extra allowance rests largely in the discretion of the trial judge, if it is to be reviewed at all the whole of the order should be presented, so that the exercise of discretion can be reviewed upon all the facts that bear upon it. The reasons given by the learned chief judge on making the order in this case, do not amount to a denial of power to grant more than was granted, but consist of considerations of an equitable character. He may have been mistaken as to their force, but that does not help the plaintiffs here. If he could have been persuaded to grant something based on loss of fee value, he might not have granted as high a percentage as he did on the amount representing past damages.

The order should be affirmed with ten dollars costs and disbursements.