Riesgo v. Glengariffe Realty Co. — 114 A.D. 172

Majority

p. 172

Louis A. Riesgo, Respondent, v. Glengariffe Realty Company, Appellant, Impleaded with James F. A. Clark and Others, as Survivors of the Firm of Clark, Ward & Company, in Liquidation, and Others, Defendants.

First Department,

June 20, 1906.

Headnote

Costs — extra allowance on foreclosure.

The amendment to section 3253 of the Code of Civil Procedure made by chapter 61 of the Laws of 1898, allows an extra allowance in excess of $200 in actions to foreclose a mortgage on real estate only when the case is difficult and extraordinary. The burden is on the plaintiff to show that the action was difficult and extraordinary, and when these facts do not appear the allowance should be limited to $200. '

Appeal by the defendant, the Glengariffe Realty Company, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of January, 1906, as granted to the plaintiff an additional allowance of $750, and also from an order entered in said clerk’s office on the 5th day of February, 1906, denying the said defendant’s motion to modify the aforesaid judgment by reducing such allowance to $200.

p. 173

Samuel F. Jacobs, for the appellant.

Philip S. Dean, for the respondent.

In the case of Long Island L. & T. Co. v. Long Island City & N. R. R. Co. ( 85 App. Div. 36 ; affd., 178 N. Y. 588 ) in construing the amendment made by chapter 61 of the Laws of 1898 to section 3253 of the Code of Civil Procedure, it was held that the effect of the amendment was to permit the court in a difficult and extraordinary action, as the foreclosure of a mortgage upon real property, to grant an extra allowance in excess of §200. The provisions of the amendment in question have been re-enacted by chapter 299 of the Laws of 1899 and chapter 316 of the Laws of 1903. To entitle the plaintiff, therefore, to an allowance in excess of the $200 which, prior to 1898 was fixed as the limit that could be awarded (Code Civ. Proc. § 3253, as amd. by Laws of 1896, chap. 571), it is necessary as the basis of the extra allowance for the plaintiff to show that the action is difficult and extraordinary. The burden thus resting on the' plaintiff was not sustained in this case, as there is nothing in the record to show that this case was in any respect difficult or extraordinary, because it in no way appears that it necessitated an examination of difficult questions of law, or involves any difficulty in making the necessary appeal.

The absence of any such difficulties and the failure of the plaintiff to bring himself within the amendment did not entitle him to any allowance beyond the $200, and the judgment appealed from should accordingly be modified by providing for an extra allowance at such sum, and as so modified it should be affirmed, with costs to the appellant.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to appellant. Settle order on notice.