Majority
p. 179The New York Breweries Co., Limited, App’lt, v. Edward P. Nichols et al., Resp’ts. (Supreme Court, General Term, First Department, Filed October 13, 1893.)
Headnote
Costs—ExtrA allowance.Where defendants appear by separate attorneys, an extra allowance equal to five per cent, may tie apportioned between them, bnt cannot be allowed, to each defendant or set of defendants.
Appeal from so much of an order granting leave to discontinue as imposed a condition that “ plaintiff pay, within ten days after the taxation of costs herein, separate bills of costs and an extra allowance of $250 to each defendant or set of defendants appearing by separate attorneys.”
Action to recover $5,000 for preventing the sheriff from taking possession of goods levied upon.
Guggenheimer & Untermyer (M. Weinman, of counsel), for app’lt; Hatch & Wickes, for resp’t Douglas; Owen, Gray & Sturges, for resp’ts Nichols et al.
An extra allowance to parties defendant cannot exceed five per. cent on amount involved. If such defendants appear by separate attorneys, an extra allowance equal to five per cent may be apportioned between them, but cannot be allowed to each. Lane v. Van Orden, 63 How. Pr., 237 . On this motion for leave to discontinue the court determined that there should be allowed to each party appearing an extra allowance of five per cent. This was error, and the order should be so modified as to provide for an extra allowance of $125 to each defendant or set of defendants separately appearing, without costs.
Van Brunt, P. J., and Parker, J., concur.