Majority
Order affirmed, without costs of this appeal to either party. Memorandum: We think that the application for an additional allowance was properly denied. The work for which an additional allowance was sought was occasioned by the defendant’s motion for summary judgment. The plaintiff should not be penalized for interposing a defense to that motion, which defense, as we have held on the appeal from the order granting the motion for summary judgment, raised a triable issue of fact. Our affirmance of the order appealed from is not to be construed as in any way affecting the defendant’s right to move for an additional allowance after the trial and disposition of the action itself. On the merits of that question, we express no opinion. All concur. (The order denies defendant’s motion for an additional allowance of costs.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.