Barnard v. Hall — 62 N.Y. St. Rep. 305

Majority

p. 305

John T. Barnard, as Temporary Administrator, etc., Resp’t, v. Susan E. Hall et al., Impleaded, etc., App’lts.^[1]

(Court of Appeals,

Filed October 16, 1894.)

Headnote

Costs—Extra allowance.

Where the complaint in an equity action was dismissed on trial, but on appeal the judgment was reversed, the order of general term affirmed by court of appeals and judgment absolute ordered for plaintiff, the special term has power, upon filing the remittitur, to .award costs and an extra allowance.

Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term directing judgment in favor of plaintiff to be entered upon a remittitur of the court of appeals.

Boothby & Warren, for app’lts; B. B. Barnum and George G. Barnard, for resp’t.

The action was brought by plaintiff’s intestate to reform a certain trust deed relating to her property and upon her death, it was continued by plaintiff. At the special term the trial resulted in a dismissal of the complaint; but, upon appeal, the general term reversed the judgment in favor of the defendant and ordered a new trial, with costs to abide the event. From their order the defendants appealed to this court, where the judgment was affirmed, and, under the stipulation of the defendants, judgment absolute was ordered by this court for the plaintiff, with costs. Barnard v. Gantz, 140 N. Y. 255 ; 55 St. Rep. 541 . After filing our remittitur, the plaintiff moved for entry of judgment thereon and for an extra allowance of five per cent. An order was entered, which, after making the judgment of this court the judgment of the supreme court, proceeded specifically to order the relief to which the plaintiff was entitled under our decision, and, further, granted “ an extra allowance of $1,100, in addition to costs which are to be hereafter taxed by the clerk," etc. The defendants and appellants insist that the special term had no right to order .costs, or an extra allowance, and that in so ordering and in formulating the equitable relief, which the plaintiff should have, the court below has gone beyond and has not conformed exactly to, the order of this court. Under our order, the costs awarded were the costs in this court only; but, as the action was one where costs were in the discretion of the court, it was proper for the court below to award them in ordering the final judgment for the plaintiff, with which our decision entitled him to. The discretion, with which the court is invested by the statute, could competently be exercised then. Nor was the granting of the extra allowance an erroneous exercise of power. The terms of our order did not preclude the court below from awarding the costs or the allowance. It' was within its discretion to award them, upon the new trial resulting successfully to the plaintiff if it had heen had, and under the course taken by

p. 306

the defendants, upon the recovery by the plaintiff of an order for an absolute judgment, the court still had the power to determine the questions of costs and of allowance. The amount of the allowance was in the discretion of the court and there has been no abuse in its exercise. As to the specific equitable relief granted by the court below, in its order for judgment, we think it was in conformity with our decision and correctly carried it into effect.

The order appealed from should be affirmed, with costs.

All concur. Order affirmed. .