SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 12, 1969
EUGENE T. MATTHEWS, RESPONDENT,
HARRY P. EMERY, APPELLANT, ET AL., DEFENDANT
Judgment of the Supreme Court, Queens County, dated April 29, 1968, modified, on the law and the facts, by deleting from the sixth decretal paragraph the words "and an additional allowance of 5% as provided in Section 8303 of the CPLR".
Christ, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.
In our opinion, under the circumstances herein, the granting of an additional allowance under CPLR 8303 (subd. [a], par. 3) was an improvident exercise of discretion.
As so modified, judgment affirmed, with costs to respondent against appellant.
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