
    Mayer Kahn, App’lt, v. Henry C. Schmidt et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 18, 1895.)
    
    1. Costs—Equity case.
    Where costs, in an equity case, are not awarded to the prevailing party by the decision, the entry of a judgment by the clerk awarding costs is, in such respect, erroneous.
    2. Same—Extra allowance.
    In such case, an extra allowance cannot be granted.
    Appeal from a judgment, dismissing the complaint, with costs, and from an order granting an extra allowance.
    
      Joseph Kling, for app’lt; Louis Cohen, for resp’ts.
   Per Curiam.

The suit was in equity, and whether costs should be granted was therefore committed to the discretion of the trial court Costs were not awarded to the prevailing party by the decision, and the entry of a judgment by the clerk awarding costs was in such respect erroneous. The court had not settled the judgment to .be entered, and the clerk was wholly without authority to perform that duty for it. As the trial court did not award costs, a different justice, sitting at special term, could not grant an extra allowance, for there can be no extra allowance unless the party asking for it is entitled to costs, either by virtue of statute or the decision of the court. Had there been a legal basis for the granting of an extra allowance, we think the motion should have been denied. The evidence relating to the merits of the controversy was not of such a character as to support the relief asked for in the complaint. It should, however, have the effect of persuading the court that in this suit, if ever, costs should be denied the prevailing party. The judgment should be* modified by striking out the provision awarding costs. The order granting the extra allowance should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs.  