It is stated by the plaintiff's counsel, in his points on this appeal, that no appeal was taken from the order of March 18, 1868, at Special Term, giving him an allowance, pursuant to § 309 of the Code, of $1,250, which he says "was based upon the value of the lease;" that the General Term, nevertheless, reduced it to $512, on the ground that an allowance under that section is only authorized upon the value of the interest of the plaintiff in the suit; and he thereupon insists that the General Term could not review an order granting an allowance upon an appeal from the judgment, it not being, as he claims, an order "involving the merits." He further says, it is an order which "affects substantial rights" within subdivision three of section 349, and is appealable; but "the appeal must be from the order, and must be taken within thirty days."
I find on a reference to the facts bearing on that question, as they appear in the case, and as I have detailed them in the statement preceding this opinion, that the counsel is mistaken, although no notice of appeal is set forth in the case, the order of General Term of 26th October, 1868, reducing the allowance, recites the fact of an appeal from the order of Special Term granting it. It must, therefore, be assumed that one was taken, and its omission from or non-insertion in the case must be chargeable to him. It was his duty to insert it, and he cannot take advantage or complain of the omission.
The question will, therefore, be considered on its merits.
The allowance at Special Term, as it is conceded by the appellant, was based "upon the value of the lease." This is not in accordance with a proper and the correct construction of the Code. It is provided by section 308 that, in addition to certain allowances given in previous sections, there shall be allowed to the plaintiff upon the recovery of a judgment by him in certain actions (not including this) specific rates of compensation; and in the following section (309) it is declared that those rates shall be estimated upon the value of the property claimed, attached or affected in certain cases, and on the amount *Page 368 found due or unpaid upon a mortgage in an action for the foreclosure thereof. It then, after making provision for an allowance on future installments in a foreclosure suit, and how the amount of value in the other cases shall be determined, concludes as follows: "In difficult and extraordinary cases, where a defence has been interposed, or in such cases where a trial has been had, and in actions or proceedings for the partition of real estate, the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent upon the amount of the recovery or claim, or subject-matter involved."
If we adopt either of the classes of cases there provided for, the allowance was excessive. The claim of the plaintiff in the prayer of his complaint is that he may be paid one-fourth of the proceeds of the lease in question on the sale thereof; the recovery did not exceed his claim, and that was the whole amount of the "subject-matter involved" in this action.
The plaintiff's claim was for the recovery of money; and although, in ascertaining what he was entitled to, it became necessary to determine the value of the entire lease — one-fourth of its value only was at issue, and the actual specific subject of litigation — I will only add that I consider it very doubtful whether this case is one where the allowance is to be regulated by the "subject-matter involved." It might, as it seems to me, be claimed with equal propriety that a plaintiff, who commenced an action for the settlement of partnership matters and accounts, and the payment of his share as a partner, could have an allowance made him, based on the entire amount of assets involved in the settlement.
Without, however, deciding that question, it is sufficient to say that the amount allowed at Special Term was erroneous, and the General Term properly reduced it.
Their judgment, so far as it made such reduction, must therefore be affirmed, with costs to respondent.
All concur.
Judgment accordingly. *Page 369