
    Mary Defendorf, Plaintiff, v. Wilson L. Defendorf et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1899.)
    Partition — Costs — Where it cannot be said that “ a defense has been interposed.”
    A demand of relief by one defendant in partition against another, but one which in no manner tends to defeat the plaintiff’s claim, does not present a case “ where a defense has been interposed ” within the meaning of section 3253 of the Code of Civil Procedure as amended in 1898, and hence, although a large amount of real property be involved in the action, the aggregate allowances cannot exceed $200.
    Motion to confirm referee’s report of sale in an action for partition. Facts embodied in opinion.
    
      Townsend & Mahan, for plaintiff.
    Emanuel Eschwege, for defendants.
    Edward Russell, for Matilda Cleland.
    A. C. Anderson, for Joshua Kantrowitz.
    Moses Esherg, for Allen D. M. Defendorf.
    Edward Jacobs, referee, in person.
   Scott, J.

This is an action for partition, in which the property sold is $160,000, and a motion is now made for an order confirming the report of sale and fixing the allowances to be paid to the attorneys for the several parties. Section 3253 of the Code of Civil Procedure, as amended by chapter 61 of the Laws of 1898, provides that allowances may be granted as follows: “1. In an action to foreclose a mortgage or for the partition of real property a sum not exceeding two and one-half per centum upon the sum due or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars. 2. In any action or special proceeding * * * where a defense has been interposed, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved.” This being an action for partition of real property, falls within the purview of subdivision 1, unless it can be said that a defense has been interposed. An examination of the judgment record shows that all of the defendants interposed answers uniting in the prayer of the complaint, so that it cannot fairly be said that any defense was interposed in the action. One of the defendants made allegations that a codefendant was indebted to her, but the issue thus raised tended in no way to defeat, in whole or in part, the relief sought by the plaintiff, and cannot be deemed to be a defense. I am, therefore, constrained, most reluctantly, to allow only $200 as an extra allowance, and, of course, all of it must go to the plaintiff, whose attorneys were called upon to perform most of the labor involved in the litigation. If I felt that the Code, as it stands now, empowered me to grant a larger allowance, I should unhesitatingly do so, as the sum to which I feel myself to be limited is obviously too small in a case involving so much property as is involved here.

Ordered accordingly.  