Vietor v. Halstead — 38 N.Y. St. Rep. 407

Majority

p. 407

George F. Vietor et al., App’lts, v. William M. Halstead et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 15, 1891.)

Headnote

Costs—Extra allowance—Demureer.

_ A demurrer is a defense within the meaning of § 3253 of the Code, providing for granting an extra allowance in a difficult and extraordinary case where a defense has been interposed.

Appeal by the plaintiffs from that part of a final judgment in favor of defendants Coster et al, which awarded an additional allowance to said defendants.

Blumenstiel & Hirsch, for app’lts; Charles E. Tracy, for resp’ts.

We are of the opinion that a demurrer is a defense, within the meaning of § 3258 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. The Mayor, etc., of New York, 52 Hun, 99 ; 22 N. Y. State Rep., 497 In that case the court held that in a controversy submitted upon an agreed state of facts, under § 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 § 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.

Van Brunt, P. J., and Daniels, J., concur.