The allowance can only be made under § 308 of the code, which provides that an allowance of not more than ten per cent on the recovery or claim for an amount not exceeding $500, and not more than five per cent for any additional amount, may be made in any case where the prosecution or defense has been unreasonably or unfairly conducted. -If a prosecution or defense has been unreasonably or unfairly conducted, *653an allowance may properly be made. That allowance, however, must be within a certain limit, and must not exceed the rate per cent of the amount of the claim or recovery. Two things then must be judicially ascertained, to warrant the allowance of any particular sum. First. The conduct of the prosecution or defense, and that it was unreasonably or unfairly conducted; Second. The amount of the recovery or claim. And first, has this suit been unfairly or unreasonably prosecuted? The thing which the plaintiff sought to recover in this suit, was the office of comptroller of the city of New York. The defendant was in the office, performing the duties of it, and the plaintiff herein claimed that he was wrongfully there, by reason of an erroneous return of the number of votes received by him from a certain district of the city; the numbers received by the defendant and relator, respectively, having been, as they said, transposed so that those received by each were credited to the other. They also claimed that the relator was the person duly elected, and that the error made in the returns being corrected, those facts would appear. On the trial the plaintiffs called several witnesses who swore to the condition of the votes claimed by them ; according to whose testimony the defendant was not entitled to the office, and the relator was duly elected to it. These witnesses were contradicted, however, by the defendant’s witnesses, and, as the result 'of the suit proved, their testimony was shown to be untrue in fact. The untruthfulness of the testimony of the witnesses for the plaintiff is the principal ground of the charge of unfairness or unreasonableness in the conduct of the prosecution. It is insisted that the testimony was intentionally untrue, and hence that the prosecution was unfairly conducted. Of course the argument is, that the plaintiffs, or those having charge of the prosecution, knew or at least believed this evidence to be untrue, and that tho conduct of the prosecution was unfair in attempting to accomplish its purposes by the use of it. The testimony may have been untrue in point of fact and the witnesses even have been entirely free from intentional untruth. The witnesses may have been guilty of intentional untruth and the party entirely innocent of it; and to make *654the facts applicable to this question, three propositions must probably be established. (1.) The untruthfulness of the testimony ; (2.) The intent of the witnesses to testify falsely ; and (3.) The guilty knowledge and complicity of the plaintiffs. The falsity or untruth of the testimony was found by the jury, it is said, and for the purposes of this motion perhaps their finding should be deemed sufficient to establish this first proposition. The intent of the witnesses is the next. The facts to which they testified were apparently, and as they said, within their own personal knowledge, and if it be impossible, beyond a reasonable doubt, that they could have erred innocently respecting them, we must consider their guilty intent proved; otherwise not. In my judgment it is not difficult to believe that they may have made an unintentional mistake, which, would leave them innocent in their statements, even assuming their statements to be erroneous ; but it is not necessary to dwell on this point, as the result of this, motion does not depend on it.
The third proposition necessary tó the support of this point is-the guilty knowledge or complicity of the plaintiffs or their agents ; and the proposition is sO extravagant that I shrink from the consideration of it. The plaintiffs themselves, (the state) of course could not have been guilty either of subornation of perjury or as accessories to that crime. But their agents and those having charge of the prosecution could have been; and, to authorize the finding in favor of the defendant on this motion, must have been. This is the necessity of the argument of the defendant ; and such a fact is not lightly to be presumed. If the prosecution was unfairly conducted in the use of that testimony because it was untrue, it must have been so for the reason that the prosecution knew its untruth ; for the use of it would not otherwise have been unfair. The prosecution, as I have said, was necessarily conducted by the attorney general and such counsel and agents as he might call to his aid; in this case, gentlemen of eminent position both professionally and personally. To pass over the insinuation of the elevated character of these representatives of the state, however, a momentary glance at the matters themselves which were the subject of the evi-
*655dence may not be unprofitable. They are certain facts and circumstances attending the canvassing of the votes, and preparing the returns for a particular district of this city at or about the time of the election in 1855. There is not a word of evidence given or offered tending to show that any mortal connected with the prosecution had or could have had any personal knowledge of any one of them, or even was informed of them by persons whom they ought to have believed, and if we are to find that any one had, we must find it from the probability arising from the intrinsic nature of the case. And what is the probability that these gentlemen had personal knowledge or reliable information of those scenes? As I have said, there is no external evidence on the subject: and there is certainly as little arising from the nature of the facts themselves. Under the circumstances we cannot assume or infer that they knew or were guilty of any fault in being ignorant of the truth of the controverted facts. But it may be said that although the people in their sovereign character are the plaintiffs, and their counsel are by law charged with the conduct of their litigation, still it is the practice to allow the relator to conduct a suit of this kind, and that we ought in the absence of evidence, to take cognizance of this fact. Suppose, for the sake of the argument, that we do assume this suit to have been conducted by the relator instead of the plaintiffs, in what respect is the above reasoning inapplicable ? All that we know of the relator from this case is, that he was a candidate and had a very large vote for the office of the highest pecuniary trust connected with the government of the city of New York; and is there any reason to believe that the witnesses introduced by him committed perjury, or if they did, shall we assume, in the absence of all evidence on the subject, that he or his agents in conducting this litigation, knew it, and were guilty of moral perjury in the use of their testimony with such knowledge ? Are the facts themselves of a nature to render it at all probable, in the absence of all evidence.on the subject, that he or his agents in this suit knew whether this testimony was or was not true ? How could they ? There is not the least prob*656ability, not to say evidence (which alone would justify action of the court) that he actually knew any thing on the subject one way or the other. There is no good reason for imputing any complicity with this false testimony to the prosecution, by whomsoever conducted; none whatever more than occurs in any case where evidence is given which the jury decline to believe; which is in effect finding that the weight of evidence in their opinion is against it; or at most that it is untrue; not that even the witnesses themselves knew it to be so; and much less that the party introducing it knew or had the means of knowing that it "was so. On the contrary, the fact that the witnesses on "whom the plaintiffs relied, testified untruly, goes to explain the error of the plaintiffs—shows how they were misled into bringing the suit by erroneous information in the premises, and tends strongly to free them of all suspicion of wantonly bringing it without sufficient grounds to justify it, in their judgments. It justifies them in bringing it, and I see nothing in it at all tending to inculpate either the plaintiffs or the relator, whichever may have had charge of the prosecution, but quite the reverse; its tendency is manifestly to exculpate the practical plaintiff whoever he may have been. The allowance, if made, would to be sure be recovered against the relator, but the facts authorizing it are not therefore to be deemed more probable and require less evidence to sustain them; still less are they to be inferred, as in this case, without evidence. The state also is liable for it if the relator make default in payment, and is in the habit of paying in such cases.
Second. The amount of the claim in this case is not easily to be ascertained, and we see no way in w'hich it can be ascertained. The allowance must not be more than a proportionate amount of the claim. Ten per cent, or five per cent, of the amount or value of the office of comproller for a certain time is not a matter which we know how to compute or ascertain. The amount of the salary for the time, can be ascertained, to be sure, but that is not the principal object of the action. The office is what is claimed. The salary is but an incident: and even that is to be had only as compensation for services to be rendered. *657No rate per cent can be fixed in a suit of this kind, and the statute authorizing an allowance is therefore not applicable to it. It is only applicable in a suit for money, or something having pecuniary value, upon which the rate allowed can be calculated.
[New York General Term,
November 2, 1857.
The order appealed from must, therefore, be reversed with costs.
Mitchell, Roosevelt and Peabody, Justices.]