
    Huntington v. Moore et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 16, 1891.)
    Taxation of Costs—Foreclosure of Mortgages.
    An action to foreclose a mortgage on a leasehold is not within the meaning of Code Civil Proc. N. Y. § 3253, restricting the taxation of costs in actions to foreclose mortgages on “real estate” to the aggregate sum of $200.
    Appeal from special term, New York county.
    Action-by Samuel E. Huntington, executor of Chauncey E. Low, deceased, against Cornelia S. Moore and others to foreclose a mortgage. - There was a decree of foreclosure and sale, and the plaintiff moved for an extra allowance of 5 per cent, in the taxation of costs, but this was denied, upon the ground that the mortgaged property was “real estate,” and that the court had no power to make a greater allowance than $200. Code Civil Proc. N. Y. § 3253, provides: “In an action to foreclose, a mortgage upon real prop-' erty * * * the court may award to any party a further sum as follows: (1) In an action to foreclose a mortgage, a sum * * *■ not exceeding two hundred dollars(2) in any other .case specified in this section, a sum not exceeding five per cent, upon the sum recovered.”
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Henry B. Hotchkiss, for appellant. A65oti Bros., (William A. Abbott, of counsel,) for respondents. •
   Daniels, J.

The judgment directed is for the foreclosure of a mortgage upon a leasehold estate, created by a lease for the period of 21 years from the 1st of November, 1888, with conditions for renewals, and reserving a rent certain. The amount secured, and for which a sale has been directed, is the sum of $10,000. The plaintiff moved for an additional allowance of costs, stating in the affidavit presented for that object that a great deal of labor had been expended in preparing for trial to show the'facts attending the loan, the payment of which was resisted, on the alleged ground of usury. The court declined to make a greater allowance than the sum of $200 for the want of power. It was held that this was the foreclosure of a mortgage on real property, and that the allowance, therefore, under subdivision 1 of section 3253 of the Code of Civil Procedure, could not exceed the sum of $200; and that is the extreme limit prescribed in an action for the foreclosure of a mortgage upon real property. B ut a leasehold in terest was held in Despard v. Churchill, 53 N. Y. 192, not to be real property, even where the lease may exceed the period of three years, and for that reason entitled to be recorded. Two leasehold interests were then before the court, one having about four and the other about five years to run; and they were held to be personal, and not real, estate. And this conclusion seems equally as applicable to the lease affected by the result of this action; for whether the lease be for 5 or 25 years cannot affect the nature of the interest created by it, or the principle which should be applied to define it. If a lease of 5 years creates a personal interest only, one o£ a longer term will necessarily be of the same legal nature; and, as the former has been established to be personal estate, the latter must be the same. These are legal phrases, and it is to be presumed that the phrase “real property, “ as it has been used in this section of the Code, has been employed in its legal sense; and that construction will exclude this action from the restriction created by its first subdivision, and place it within the language of the other parts of the section, so far as that has provided the power of making additional allowances in difficult and extraordinary cases. The affidavit, as it has been made, may not be deemed sufficient to prove this action to have been difficult and extraordinary, but whether it can be so considered or not is a subject which must first be brought to the attention of the special term, which is the tribunal to first hear the motion. That has not yet been done, because this action was held to be for the foreclosure of a mortgage on real property. To afford the plaintiff the opportunity of making the application on that ground, this order should be reversed, but, as the point is a new one, it should be without costs of this appeal. All concur.  