Vietor v. Halstead — 14 N.Y.S. 516

Majority

p. 516

Vietor et al. v. Halstead et al.

(Supreme Court, General Term, First Department.

May 15, 1891.)

Headnote

Costs—Extra Allowance.

A demurrer is a defense, within Code Civil Proo. N. Y. § 3253, providing that, in a difficult and extraordinary case, where a defense has been interposed, the court may award a further sum, not exceeding 5 per centum, etc.

Appeal from special term, New York county.

Action by George F. Vietor and another against William M. Halstead and another. Plaintiffs appeal from a judgment awarding an additional al

p. 517

lowance'to defendants, under Code Civil Proc. H.-Y. § 3258, which provides» that, in a difficult and extraordinary case, when a defense has been interposed, the court may, in its discretion, award to any party afurther sum, not exceeding 5.per centum upon the sum recovered or claimed or the subject-matter involved.

Argued before Van Brunt, P. J., and Daniels and Lawrence, JJ.

Blumenstiel & Hirsch, for appellants. Bangs, Stetson, Tracy & MacVeagh, (C. E. Tracy, of counsel,) for respondents.

We are of the opinion that a demurrer is a “defense,” within the meaning of section 3253 of the Code of Civil Procedure, and that it is within the power of the court to grant an allowance. If an authority is needed for this proposition, beyond the sections of the Code relating to demurrers, it will be found in the case of Kingsland v. Mayor, etc., 52 Hun, 99 .^[1] In that case the court held that, in a controversy submitted upon an agreed state of facts, under section 1279 of the Code of Civil Procedure, the court had power to grant an allowance, and the court said: “The position of the defendant is the same as that of a defendant who demurs to the complaint in an ■ordinary action. He admits the facts as alleged, but denies that they entitle the plaintiff to any relief against- him. * * *” The demurrer is deemed to be a defense, under section 3253. We see no reason for interfering with the discretion,exercised by the court below, and shall therefore affirm the order appealed from, with costs and disbursements. All concur.

1 4 N. Y. Supp. 685 .