
    Mary Defendorf, Appellant and Respondent, v. Wilson L. Defendorf and Others, Respondents and Appellants, Impleaded with Others.
    
      Metra allowance in a partition suit—what does not constitute a defense under Code Civil Procedure, section 3253, subdivision -2 — chapter 61 of the Laws of 1898 is applicable to suits pending 'at the time of its enactment.
    
    An answer interposed by a defendant in ¡a partition suit, uniting in the prayer of the complaint, but disputing the title of a co-defendant, does not present "a defense” within the meaning of subdivision 2 of section 3253 of the Code of Civil Procedure, as amended by chapter 61 of the Laws of 1898, authorizing the court to grant as an extra allowance “in any action * * * 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; ” and in such a case the amount which the court has power to award as an extra allowance is limited by subdivision 1 of the section, as. thus amended, to §200. The amendment of 1898 applies to actions begun before its enactment.
    Appeal, by the plaintiff, Mary Defendorf, from so much of an order of the Supreme Court, made at the New York Special Term, bearing date the 6th day of March, 1899, and entered in the office of the clerk of the county of New York, as limits to $200 the extra allowance of costs granted to the plaintiff.
    Appeal by the defendants, Wilson L. Defendorf and others, from so much of said order as denies motions for an extra allowance made on behalf of each of said defendants.
    
      W. I. Kane, for the plaintiff.
    
      Armour O. Anderson, for the defendants.
   O’Brien, J.:

The learned judge below, satisfied that upon the merits the motion should have been granted, denied it for want of power; and, upon the facts presented, the sole question on this appeal is whether his construction of section 3253 of the Code of Civil Procedure, as amended in. 1898 (Chap. 61, Laws of 1898), was right.

This was an action in partition, and the complaint, in specifying the rights and interests of the parties in the property, alleged, among other things,.“that the defendant Wilson L. Defendorf or the defendant Joshua Kantrowitz is the owner in fee, as tenant in common, of one equal undivided one-sixth part thereof.” The defendant Defendorf did not answer, but Kantrowitz did, claiming that interest under a deed to him from Defendorf. One of the other defendants, Matilda Cleland, assailed the validity of this deed, asserting that it was made in fraud of creditors and that Defendorf, while holding title in his own name, collected rents which belonged to her and which she demanded should be accounted for in this action.

Section 3253 of the Code of Civil Procedure, as amended in 1898, provides for allowances as follows :

“ 1. In an action to foreclose a mortgage or for the partition of real property a sum not exceeding * * * the aggregate sum of two hundred dollars.

“2. In any action * * * 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.”

It will thus be.seen that a sum greater than $200 cannot be granted in a partition suit unless a defense has been interposed; and the only question here is whether, by the answer of one defendant, which disputes the title of another defendant, there is presented c: a defense,” within the meaning of the Code of Civil Procedure, making this an exceptional case where more than $200 can be allowed. We think that the learned judge below correctly disposed of this question in saying “ 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 co-defendant 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.”

The amendment of 1898 went into effect September 1, 1898, after this action was commenced, but there is no force in the suggestion that for that reason the amendment is not controlling. Parties have no vested rights in costs or allowances — which are always within the power of the Legislature to modify or change — and in every case the amount is to be determined by the law as it stands when the right to the costs and allowances accrues. Here the property sold for over $100,000, and considering the labor entailed, the-amount of the allowance to which the court was limited, namely,. $200 — all of which was given to the plaintiff and nothing to the defendants — was inadequate. There has seemingly been an effort on the'part of the Legislature to remedy such a state of affairs by the amendment to section 3253 of the Code of Civil Procedure, made by chapter 299 of the Laws of 1899, .which amendment, however, will not take effect till September 1, 1899, too late for the parties in this action to derive any benefit therefrom.'

The order appealed from must, therefore, be affirmed, and, as both parties appeal, it should be without costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, without costs.  