Miller v. Clary — 133 N.Y.S. 1101

Majority

p. 1101

(147 App. Div. 267.)

MILLER v. CLARY et al.

(Supreme Court, Equity Term, Seneca County.)

Headnote

Costs (§ 164^[1] )—Additional Allowance—Statutory Provisions.

An extra allowance, authorized by Code Civ. Proc. § 3253, will be granted when the case is difficult and extraordinary, not only because of intricate questions of law involved, blit also because of intricate questions of fact.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 620-636; Dec. Dig. § 164.*]

Action by Josiah T. Miller against Thomas J. Clary and others. From a judgment for plaintiff, certain of the defendants appeal. On motion of plaintiff for extra allowance.

Granted.

See, also, 147 App. Div. 255 , 127 N. Y. Supp. 897 , 131 N. Y. Supp. 1129 .

Hawley & Carmer (Charles A. Hawley, of counsel), for the motion.

Hammond & Hammond (Jasper N. Hammond, of counsel), opposed.

This motion should be granted, for the case was both difficult and extraordinary, not only because of the intricate questions of law involved, but also because of the intricate and unusual questions of fact which were involved in this litigation. Code Civ. Proc. § 3253; American Fruit Product Co. v. Ward, 113 App. Div. 324 , 99 N. Y. Supp. 717 .

The $10,000 counterclaim, which was set up by defendants Clary, and litigated and disallowed, and also the easements to which plaintiff was adjudged to be entitled, would each furnish a proper basis for an additional allowance, and under the circumstances and considering the unusual and intricate questions involved, here, I think an additional allowance to plaintiff of $500 is just and reasonable.

An order may be entered accordingly.