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As appears from the recitals in the order appealed from, the order of the Special Term was reversed upon questions of law and not upon a review of the discretion of the judge by whose directions the order for an extra allowance of costs was given. It is to be conceded that if the subject-matter of the litigation has no pecuniary value, or if its value is not shown, such allowance is not authorized (Conaughty v. Saratoga Co. Bank,92 N.Y. 401), for under the Code (§ 3253), it is, if allowed, to be computed upon the sum recovered or claimed, or upon the value of the subject-matter involved. But the concession does not aid the appellant, for as plaintiff in the action he gave notice with the summons that upon default of an appearance or answer, judgment would be taken by him in the sum of $65,000, with interest from April, 1875, and it is not for him to say that
this notice is a nullity. It is his statement of the amount involved in the action. The complaint justifies the statement. It alleges the plaintiff's partnership with the deceased, Henry Adams, an investment by the latter in his own name of specific amounts of the joint funds of the partnership in the purchase of specific real estate and securities, and the receipt by him of the rents and dividends issuing therefrom, amounting in the aggregate to large sums, of which an approximate estimate is made; and, further, the plaintiff alleges with absolute definiteness that "the average income of said partnership was not less than $5,000 per annum, equal in gross sums to upwards of $100,000, which was received and invested by said Henry Adams in manner hereinbefore stated; and that said Henry Adams received all dividends, annual interests and profits accruing from such investments, amounting in gross sum to another $100,000, equal in all to not less than $200,000, all of which facts he states according to his best recollection, information and belief."
The judgment asked is that the partnership be dissolved, and also that an account be taken, not only of the partnership business but of the receipts of moneys, investment of the same, dividends, rents, etc., and of all the rights, etc., of the plaintiff in respect thereto as specified in the complaint. One-half of the property, securities and money mentioned as the assets of the partnership, constitute the subject-matter involved, that being the plaintiff's share, if a copartner, and one-half of the value, as stated in the complaint, furnishes a sufficient basis for computation of an allowance. The judgment rendered is conclusive of the right of the defendants to retain, as the individual property of Henry Adams, all the property described, and we think a case was made upon which the discretion of the trial judge as to allowance might be exercised.
The cases cited by the respondent differ from the one in hand. In Weaver v. Ely (83 N.Y. 89) the plaintiff's legacies were only payable after the testator's debts, the estate was shown to be insolvent, and it seemed clear that the plaintiff's
claim was without value. In Struthers v. Pearce (51 N.Y. 365) the allowance was reduced to a sum estimated on one-fourth of the value of the lease (that being the property in question), the plaintiff claiming no interest beyond that. Here the plaintiff claims as equal partner, and there is no suggestion that the sums stated are subject to any deduction. They might be increased and added to by other items, as to the detail of which the plaintiff assumed ignorance, but not reduced, for as to those enumerated the plaintiff spoke from knowledge or information, upon the faith of which he made the allegations. The decision of the trial judge is, however, subject to review by the General Term; and as that court has disposed of it without passing upon the merits its order should be reversed and the case remitted to it for further consideration.
All concur.
Ordered accordingly.