Rosenberg v. City of New York

Charles J. Beckinella, J.

Motion for an additional allowance pursuant to section 1513 of the Civil Practice Act denied.

The result achieved in the special proceeding in which this motion is made was the validation of the service of the two notices of claim pursuant to section 50-e of the General Municipal Law. There was no ‘‘ sum recovered or claimed ’’ in the special proceeding nor can it be said just what is the ‘‘ value of the subject matter involved ” in the special proceeding.

It has long been the law that the value of the subject matter must appear when an application for an additional allowance is made pursuant to section 1513 of the Civil Practice Act.

“We think the extra allowance of costs should not have been granted. Under the Code (Sec. 3253) such an allowance must be based upon ‘ the sum recovered or claimed, or the value of the subject-matter involved.’ Here there was no sum recovered or claimed, and there is no allegation, proof or finding as to the value of the subject-matter involved. There is, therefore, no basis for the allowance, and it was error to grant it. Conceding, for the purpose of the discussion, that the action was ‘ difficult and extraordinary ’ within the meaning of the Code, it is, nevertheless, entirely barren of facts upon which to make a computation for such an allowance. No sum of money was asked for or recovered. The subject-matter involved was incapable of valuation.” (Kitching v. Brown, 180 N. Y. 414, 429.)

The application is also denied as a matter of discretion on the ground that the proceeding was not within the class of cases considered difficult and extraordinary. Submit order.