This action was brought by the predecessors of the plaintiffs to restrain the defendant from accelerating and increasing by means of pumps and other apparatus the flow of mineral *426waters on its own premises, thereby substantially diminishing the flow of such water from the spring of the predecessors of the respondents. The action was before the Court of Appeals on the question of the sufficiency of the complaint and the propriety of a preliminary injunction and was reported in 194 New York, 326. The action has since been tried and has resulted in a judgment in favor of the plaintiffs restraining the defendant in its pumping operations. (See 179 App. Div. 948.)
An additional allowance of $1,000 was made to the plaintiffs and the defendant appeals from the order allowing the same on the ground that there is no basis for an allowance. The allowance must be computed “ upon the sum recovered or claimed or the value of the subject-matter involved.” (Code Civ. Proc. § 3253.)
In the complaint $100,000 damages were claimed, but damages were waived at the trial and such claim cannot, therefore, be made the basis for an allowance. (Deuterman v. Gainsborg, 54 App. Div. 575.) The plaintiffs, therefore, must sustain the allowance on the theory that it is based on “ the value of the subject-matter involved.”
It is well established that there is no power to grant an additional allowance except upon the basis of the value of a claim or subject-matter involved in the action and litigated directly and not incidentally. (People ex rel. Winans v. Adams, 128 N. Y. 129.)
In Conaughty v. Saratoga County Bank (92 N. Y. 401) it is said: “It is apparent that the word involved is used in a legal sense, and means the possession, ownership or title to property or other valuable thing which is to be determined by the result of the action. It does not mean the property which may be either directly or remotely affected by the result, as such a rule would from its vagueness and uncertainty be impracticable in application. The cases uniformly seem to sustain this view.”
The basis for the allowance adopted by the Special Term was the amount of damages which when the injunction pendente lite was granted, the defendant claimed it would sustain as a result thereof. The plaintiffs were required to give an undertaking in the sum of $20,000. The defendant claimed that this undertaking was insufficient in amount and *427that large damages would be sustained by it in consequence of the injunction, and on such affidavits and statements the court has deduced “ the value of the subject-matter involved.” There is no evidence of the value of the plaintiffs’ right to an unobstructed flow of water from their spring.
Clearly the damages of the defendant are entirely unrelated to the damages of the plaintiffs and such damages do not measure the value of the subject-matter involved. They constitute no part of the litigation and were not investigated or even incidentally involved at the trial. In no aspect of the case could those damages have been properly determined. If the judgment had been favorable to the defendant such damages would have been the subject of subsequent investigation and action (Code Civ. Proc. §§ 623, 625), and in such an action they would have constituted the basis for an allowance.
In People v. Page (39 App. Div. 110) the defendant was enjoined in the construction of a dam across the Mohawk'river. The court said: “We are of the opinion that the subject-matter of the litigation is the right of the State to have the waters of the Mohawk river flow free and unobstructed. There is no proof of the value of that right, and, therefore, no basis for the extra allowance and none should be allowed.”
Lattimer v. Livermore (72 N. Y. 174) was an action to restrain defendant from encroaching by an extension of his own building upon an easement of the plaintiff, and the court said: " The easement was the subject-matter involved in the litigation, and its value was proper as the basis of the allowance.”
In an action to determine the validity of 'a lease of a railroad it has been held that the subject-matter involved was the value of the lease and not the rental value of the railroad although evidence of such value was present. (Ogdensburgh & Lake Champlain R. R. Co. v. Vermont & Canada R. R. Co., 63 N. Y. 176.)
In an action by a legatee to compel an accounting the value of the legatee’s interest and not the amount of the estate was held to be the subject-matter involved. (Weaver v. Ely., 83 N. Y. 89.)
In an action to establish the right of the plaintiff to one-quarter of a lease of real estate belonging to a firm of which *428he was a member, it was held that the plaintiff’s one-quarter interest in the lease was the only basis for an allowance. (Struthers v. Pearce, 51 N. Y. 365.)
In an action to restrain the defendant from manufacturing friction matches an order granting an allowance was reversed, although the case disclosed abundant evidence of depreciation in defendant’s property by reason of the injunction. (Diamond Match Company v. Boeber, 35 Hun, 421.)
In an action for an accounting it is the plaintiff’s net interest in the result of the transactions disclosed by the accounting which constitutes the basis for an allowance. (Weidenfeld v. Byrne, 113 App. Div. 410.)
The foregoing authorities seem to establish that the court had no power to make the allowance in question. It certainly is a unique theory that in an action for an injunction when the plaintiff has succeeded he may present affidavits of the pecuniary loss which his opponent sustains by reason of the injunction and make that the basis for an additional allowance of costs. That is in effect precisely what has been done here. The fact that these affidavits were used on a motion for a preliminary injunction has no bearing on this question. If such a motion had not been made the plaintiffs could supply affidavits to the same effect for the purpose of procuring an allowance if the allowance here made is to prevail. And if they could do so the defendant could do the same if it had prevailed in the action. Furthermore, if the plaintiffs had recovered damages they would not be limited to such a recovery as the basis for an allowance but could still allege the defendant’s pecuniary loss due to the injunction as a basis for an allowance in addition to their own recovery of damages. Both in reason and on authority no allowance can be granted on the basis adopted herein.
The order should be reversed, without costs, and the motion denied, without costs.
All concurred, except Kellogg, P. J., dissenting in opinion in which Lyon, J., concurred.