Opinion
April, 1932.
Order granting plaintiff an extra allowance of $1,500 modified by reducing it to $12.50, and as so modified affirmed, without costs. (1) Orders of this character have been treated as appealable. ( People v. N.Y.C.R.R. Co., 29 N.Y. 418, 421; Diamond Expansion Bolt Co. v. U.S. Expansion B. Co., 177 App. Div. 554, 565; Commercial National Bank v. Hand, 27 id. 145; Civ. Prac. Act, § 609, subds. 3, 4.) (2) The five per cent allowance should have been computed on the amount recovered, which amount was $250, and, therefore, the allowance should have been $12.50. ( Williamsburgh City Fire Ins. Co. v. Central New England R. Co., 202 App. Div. 813; affd., 235 N.Y. 582; Civ. Prac. Act, § 1513.) Recourse to value of subject-matter for the purpose of computing an extra allowance may only be had where the party does not seek or recover damages. ( Little Falls Fibre Co. v. Ford Son, Inc., 223 App. Div. 559; affd., 249 N.Y. 495.) Lazansky, P.J., Hagarty, Carswell, Scudder and Davis, JJ., concur.