Meyer Rubber Co. v. Lester Shoe Co.
New York Supreme Court
Appeal from special term, Madison county. Action by the Meyer Rubber Company against the Lester Shoe Company and the Lestershire Boot & Shoe Company. Plaintiff moved for an extra allowance, stating in its notice that the motion was made on certain affidavits mentioned in the notice, “and upon all of the pleadings and proceedings had and taken in this action.”
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Appeal from special term, Madison county. Action by the Meyer Rubber Company against the Lester Shoe Company and the Lestershire Boot & Shoe Company. Plaintiff moved for an extra allowance, stating in its notice that the motion was made on certain affidavits mentioned in the notice, “and upon all of the pleadings and proceedings had and taken in this action.” In the order the affidavits mentioned in the notice are enumerated as having been read and used, and that the motion was made thereon, and upon all the proceedings had and taken in this action. The motion wTas denied, the order, near its…
1Opinion of the CourtHardin, P. J.
In Burke v. Candee, 63 Barb. 552, it was held, viz.: “An additional allowance is made" by way of an indemnity to the party succeeding in the litigation.” That case was referred to with approval in Gooding v. Brown, 21 Wkly. Dig. 47; Tolman v. Railroad Co., 31 Hun, 403; and Delcomyn v. Chamberlain, 48 How. Prac. 413. Section 3253 of the Code proAddes that in an action which is “difficult and extraordinary,” where a defense has been interposed, the court may, in its discretion, award to any party “a sum not exceeding five per centum upon the sum recovered, or claimed, or the value of the…
2Cases cited2 opinions
- Burke v. CandeeNew York Supreme Court · 1872
- Delcomyn v. ChamberlainThe Superior Court of New York City · 1875
3Cited by2 opinions
- Meyer Rubber Co. v. Lester Shoe Co.New York Supreme Court · 1895
- Liebetrut v. GaskinAppellate Division of the Supreme Court of the State of New York · 1898