
    Francis Lahey, App’lt, v. Gouverneur Kortright et al., Resp’ts.
    
      (New York Superior Court, General Term
    
    
      Filed June 27, 1890.)
    
    Costs — Extea allowance.
    In an action by a purchaser to be relieved from his contract, in which it is adjudged that he specifically perform and pay the sum of $36,300, which the property is shown by affidavit to have been worth, the subject-matter involved is property of the value of $36,300, and there having been two trials and an appeal the granting of an extra allowance of $800 is not error.
    Appeal from judgment entered after trial before the court without a jury and from an order giving defendants an extra allowance.
    Action by the plaintiff to be released from a contract for the purchase of the premises described in the complaint. As an incident to such relief, he asks for the return of the ten percent. paid by him at the sale, the auctioneer’s and salesroom fee, and his counsel’s fee for examining the title. The defendants asked a judgment for specific performance.
    The question litigated was "whether the defendants were able at the closing of the title to give the plaintiff a good marketable title.
    
      James F. Malcolm, for app’lt; Platt & Bowers, for resp’ts.
   Truax, J.

It is unnecessary for us to discuss the points raised by appellant on the appeal from, the judgment, as they were determined against appellant on a former appeal. Lahey v. Kortright, 56 Supr. Ct., 527; 22 N. Y. State Rep., 434.

It was adjudged by the trial court that plaintiff should specifically perform his contract to take title to, and pay the sum of $36,300 for two certain pieces of property, which pieces of property it was alleged in one of the affidavits used on the motion for an extra allowance, were worth said sum. The trial judge granted an allowance of $800.

We are of the opinion that property of the value of $36,300 was the “subject matter involved,” Code of Civil Procedure, § 3253, and as the amount allowed was less than five per cent, of this amount, and as there had been two trials and one appeal to the general term, we cannot say that the trial judge erred in granting the allowance.

Judgment and order appealed from affirmed, with costs.

Freedman, J., concurs.  