Chester v. Jumel — 24 N.Y. St. Rep. 230

Majority

p. 230

Stephen M. Chester, Resp’t, v. Francois Henry Jumel et al., App’lts.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

1. Additional allowance—When proper.

In a difficult and extraordinary action, an allowance, in addition to the costs, is proper.

2. Same—Against whom chargeable.

Where it appeared that the litigation arose principally out of the contest of the defendants, the additional allowances were properly charged against moneys belonging to them.

Appeal from an order of the special term, making addi tional allowances of costs.

Everett P. Wheeler, for app’lts; Douglas Campbell, for resp’t.

By the order from which the appeal has been taken, the sum of $500, in addition to the costs, was allowed to the plaintiff in the action, and, as the suit was brought for the benefit of all the parties to it, in order to secure a settlement of their rights before a distribution of the fund, or property, should be made, this allowance seems, under the circumstances, to have been proper. That the action was difficult and extraordinary is substantially free from doubt. Upon each side of the case that was clearly its character, and the allowance to the plaintiff does not appear to have been, in any manner, excessive.

A further allowance of $1,000 was made to the defendant Campbell. The sum of $500 was allowed to -the defendant Smith; and a like amount to the defendant Schermerhorn. His claim, as it was directed to be paid, should be reduced by the deduction of interest allowed from August 28, 1880 to April 3, 1888, and a corresponding reduction should, consequently, be made in this allowance of costs.

As to the others, no reason appears for interfering with them. They have been made payable out of a fund realized by the defendant Chambrun, and the Jumel heirs. Ho other person, therefore, had any reason to, or has complained of these allowances, and, as the litigation, protracted as it was, principally arose out of the contest of these defendants, .the allowances were properly charged against moneys belonging to them.

The order directing their payment, with the single exception which has been stated, seems to have been right; and, with the modification reducing the allowance to Schermerhorn in the proposition in which the moneys awarded to him have been reduced, should be affirmed without costs to either party.

Van Brunt, Oh. J., concurs.