Opinion
October 21, 1965
Appeal from the Wayne County Court.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Judgment unanimously modified on the law and facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Memorandum: The trial court made an additional allowance of $2,675 to plaintiffs under CPLR 8303 (subd. [a], par. 2). There is nothing in the record to demonstrate that this was either a difficult or an extraordinary case. Trial occupied only two days. Plaintiffs called three witnesses and the defendant called five. Most of plaintiffs' proof consisted of the proof of execution by the corporation of a bond, mortgage, borrowing resolutions and a separate agreement providing for acceleration of the principal balance of the mortgage if certain officers lost control of the corporation. The issues whether the execution of the separate agreement was authorized, whether it was ultra vires or contrary to public policy and whether the agreement could be received in evidence and construed as a part of the mortgage did not require an unusual amount of advance preparation or special ability. Therefore, the allowance of 5% of the amount recovered for the trial of a difficult or extraordinary action constituted an abuse of discretion. An allowance of 2 1/2% of the mortgage, not to exceed $300, could properly have been made under CPLR 8303 (subd. [a], par. 1). The judgment should be modified by striking out the additional allowance of $2,675 under CPLR 8303 (subd. [a], par. 2), by granting an additional allowance of $300 under CPLR 8303 (subd. [a], par. 1), reducing the total of plaintiffs' taxable costs included in the judgment to $667.75, and as so modified, affirmed.