p. 474Savage, appellant, v. Allen.Headnote
Costs—additional allowance.Where a party, by the final judgment, does not recover general costs, but costs of the appeals only, he is not entitled to an additional allowance.
Appeal from an order granting to defendant an extra allowance of five per cent on $8,000, the value of the lot involved in the controversy. The action was brought by the appellant to restrain the respondent from prosecuting an ejectment suit, and for a confirmatory deed of the lot in dispute. The material facts appear in the opinion.
W. Howard Wait, for appellant.
The right to an extra allowance where it exists is an incident to the right to costs. Littlefield v. Murin, 4 How. 308 ; Belding v. Conklin, id. 196; Code, § 308. The respondent has waived her right to an extra allowance by the judgment entered on direction of the general term. Clark v. City of Rochester, 29 How. 97 ; Beals v. Benjamin, id. 101 ; People v. New York Cent. R. R. Co., 30 id. 148 .Arnoux, Ritch & Woodford, for respondent.
The defendant has been put to needless and vexatious litigation, and no legal principle has been violated in granting the allowance. 8 N. Y. 107 ; 12 id. 336; 16 id. 543; 17 id. 28; 22 id. 420; 36 id. 395; 49 id. 286; also cited People v. N. Y. C. R. R., 29 id. 418.This case, being a suit in equity, was tried before a referee, who gave judgment in favor of the plaintiff, but held that" the respective equities were such that neither party was entitled to recover costs as against the other. Judgment having been entered on the decision, the defendant appealed to the general term, where the judgment was reversed, with costs, to abide the event. From the judgment of reversal plaintiff appealed to the court of appeals, where the judgment of the general term was affirmed, with costs, and final judgment rendered for the defendant under the plaintiff’s stipulation. Costs of "the two appeals have been taxed, and the special term, on motion of the defendant, gave an additional allowance of $400. Judgment has been entered for the costs of the appeals and the allowance, but not for costs of the trial.
p. 475It is insisted that the case was not one in which the additional allowance could be given, on the ground that the defendant does not recover general costs, but costs of the appeals only. This position seems to 'be well taken.
Clark v.
City of Rochester, 29 How. 97 ;
Beale v.
Benjamin, id. 101 ;
People v.
Central R. R. Co., 30 id. 148 ;
Van Rensselaer v.
Kidd, 5 How. 242 ;
Martin v.
McCormick, 2 Sandf. 755 ;
Quade v.
N. Y. and E. R. R., 11 How. 434 ; 17 id. 456 ;
Wolf v.
Van Nostrand, 2 N. Y. 570 .
The order granting the additional allowance must be reversed but without costs of the appeal.
Order reversed.