Harlem Bridge, Morrisania & Fordham Railway Co. v. Town Board of Westchester

27 N.Y.S. 764 | N.Y. Sup. Ct. | 1894

VAN BRUNT, P. J.

This action was brought on the 13th of June, 1892, for an injunction to prevent the defendants from interfering with the plaintiff in building and operating its street-surface railroad, and to prevent the defendant traction companies from building their own railroads. An injunction was served with the summons and complaint, and, after argument, continued pending the trial of the action. Issue was joined in August, 1892, and the case reached for trial on the 18th of November of that year, and adjourned upon the ■ application of the plaintiff. An appeal having been taken from the order continuing the injunction, the same was heard in November, 1892, and a reargument ordered. 22 N. Y. Supp. 1105. The case was put on the January calendar, and noticed for argument, but was moved off by the plaintiff, and put on the February calendar, and argued. Before a decision was rendered, the plaintiff having made a motion for the discontinuance of the action, on the 27th of February, 1893, an order was made and entered by this court granting the plaintiff’s motion upon certain conditions. On the 7th of March, 1893, an order was entered reciting the compliance by the plaintiff with the conditions contained in the order of February 27, .1893, (except as to the extra allowance, to be thereafter disposed of,) and the payment of the costs therein required to be paid, and the receipt thereof by the defendants’ attorney. It was ordered that the action be, and the same thereby was, discontinued without further costs to either party as against the other. A motion for an extra allowance having been made, the same was denied; and, an application having been made for leave to renew said motion, such leave was given, and the motion for extra allowance granted, and from the orders thereupon entered this appeal is taken.

I have not been enabled to see how it was possible to make a motion for an extra allowance after an action had been actually discontinued and ended. The order of March 7th discontinued the action without further costs to either party as against the other. It was absolute in its terms, and as long as that order existed there was no action pending in which a motion for an extra allowance could be granted. It may be said that in the body of the order it was recited that the plaintiff had complied with all the conditions for discontinuance, except as to the extra allowance, which was thereafter to be disposed of; but the court had no power to retain the question of extra allowance to be disposed of after an action was actually discontinued. The order directed, notwithstanding these recitals, that the action be discontinued without further costs to either party as against the other. This was the judgment of the court. In this judgment there was no reservation (if such a reservation could have been made) of the right to make a motion for an extra allowance. I have been unable to see how the court could exercise any such power. The moment the action was discontinued, that moment the court lost all jurisdiction of the parties. No action pending, no order could be made therein. The action had been discontinued without further costs to either party as against the other; and an extra allowance is in addition to costs, and is part of the costs, and the granting of such a motion is in contravention of the judgment of discontinuance. I think, therefore, without discussing the question as to the power of the court, in view of the nature of the at-' tempted averments upon information and belief as to the value of the subject-matter of the litigation, that the court had no power, after the action had been discontinued, to entertain a motion for an extra allowance. As well might the court, in the case of a trial after judgment entered, entertain such a motion. The order appealed from should be reversed, with $10 costs and disbursements.