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EUGENE T. MATTHEWS v. HARRY P. EMERY (05/12/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 12, 1969

EUGENE T. MATTHEWS, RESPONDENT,
v.
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.

Disposition

As so modified, judgment affirmed, with costs to respondent against appellant.

19690512

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