
    David F. Wilber, Appellant, v. John L. Williams and Henry W. Box, Respondents.
    
      Metra allowance —- its granting, discretionary -r- irregularity in not making the motion before the justice who tried the case, when waived.
    
    Upon añ appeal from an order granting an additional' allowance of §1,000 -it appeared that, the. complaint demanded judgment for §100,000. damages and also asked specific performance of a contract and an accounting; that several ' attempts were"made to bring the action to trial before it was finally brought .to ,a. hearing',, at which the plaintiff made several dilatory motions which were denied; the defendant then moved to dismiss the Complaint and the motion was granted; the"term wras then adjourned, and'thereafter the motion for an extra allowance was made before and granted by another justice, as to whom ' no objection was made upon the ground that he had not presided at the trial when the- complaint was dismissed.
    
      Meld, that the irregularity, in that the motion for an extra allowance was not made at a term held by the same judge who presided at the trial, was waived;
    That as there was a conflict as to whether the case was difficult and extraordinary,, and it did not appear that the discretion exercised in the matter by the court .below had been abused, its decision would not be disturbed.
    Appeal by the plaintiff, David F. Wilber^ from an order of the Supreme Court, made at the Erie Special Term and entered in the; office of the clerk of the county ' of Erie on the 27th day of' November, 1895, granting the defendants an additional, allowance: of .$1,000.
    The order appealed from was granted on the affidavit of O. M. Busbnell; the answer of the defendants'; the examination of the defendants before a referee; 'the affidavits used upon the'motion' to change the pláce of trial from Otsego to Erie county, and upon the proceedings of record in this case.”
    The motion was' opposed upon an affidavit of the attorney for the plaintiff.,
    It was made to appear by the. affidavits-^ examinations, and'proceedings of record,, as the order recites, “ to the- satisfaction of the court that the sum claimed herein ivas $40.0,-000j and that said action was a difficult and extraordinary action, and that a defense was interposed thereto.” .
    The complaint contained thirty-two folios, and set out an agreement made on the 5th day of February, 1892, .between F. W. 
      Hawley and the defendants as to a joint venture to he made in the purchase of land in Erie county, and that the contract was subsequently assigned to the plaintiff.
    The prayer of the complaint was that the plaintiff have judgment for “ The sum of $400,000.00, his said damages; also, compelling and directing a specific performance on the part of defendants of the said contract; also, compelling and directing the said defendants to account to this plaintiff for all lands purchased by them under and by virtue of the said contract hereinbefore set forth, including the said Briggs farm, and to account for such .of said lands as have been sold by them, and such other or further order or relief as the court may deem just.”
    The answer consisted of numerous denials and an admission that on the 5th of February, 1892, the defendants entered into a contract with one F. W. Hawley, set forth in the complaint, and which the complaint alleges was assigned to the plaintiff. The answer also alleges that the defendants informed Hawley on the 8th of February, 1892, “ that no lands could be purchased under said contract, and it was then and there mutually agreed by the defendants and said Hawley that no lands could or should be purchased under said contract, and that the contract should be abandoned and no further steps taken thereunder, and they did then and thereupon abandon and cancel said contract, and the said Hawley did consent to the cancellation of such contract in writing duly signed by him.”
    It was further alleged in the answer that Hawley failed to carry out and perform any of the provisions of the contract alleged in the complaint.
    
      Douglas W. Miller, for the appellant.
    
      Norton & Bushnell, for the respondents.
   Hardih, P. J.:

Section 3253 of the Code authorizes an additional allowance “ in a difficult and extraordinary case where a defense has been interposed in any action.” And subdivision 2 of that section authorizes the allowance to be a sum not exceeding five per centum upon the sum recovered or claimed.” It seems that several ineffectual efforts were made to bring the action to trial at Special ■Term, and it was set down for trial at a future day by a judge who -did not appear on the adjourned day, when.it.was finally brought to a hearing. At the hearing, several motions were, made of a. dilatory character, and one of them was based upon an affidavit verified '.October seventh by the attorney, and another one verified October eighth by the counsel for the plaintiffand after those several' motions were denied, the defendants moved .to dismiss the complaint, and the plaintiff objected on several grounds, and the complaint was dismissed with costs by Mr. justice Childs. The term was'further adjourned, and upon affidavits a motion was made at a later day in the term when the motion came on to be heard.before Mr. Justice Spuing, who had heard some- preliminary motions that had been made in the cause: Tlie record before us does not .show that any objection, was made at the time the motion was argued 'before Mr. Justice Spuing on the ground that he did not preside at the trial at ■the time the dismissal -of the action took place.. The order, does not recite any objection to the organization of the court,' and, although rule 45 provides that motions for extra allowance should be. made at a term held by the judge who presided at the trial,. We think that, inasmuch as it does not appear that the plaintiff objected at the time, the motion was presented and submitted, the plaintiff did not promptly object to the irregularity of. which he now seeks .to complain. .

Again, it appears that the object .of 'the rule was to enable the judge who is to pass upon the question whether the case was difficult and extraordinary or not, — that, he might be possessed of the facts and circumstances transpiring at the trial. (Safety Steam Generator Co. v. Dickson Co., 61 Hun, 335; Sentenis v. Ladew, 140 N. Y. 463.)

In this case there seems to have been no protracted trial, and, therefore, the reason of the rule was not violated, inasmuch as it appears that the judge who granted the motion had about as much information as to the nature of the issue, and of what transpired on the occasion of the dismissal of the complaint, as the judge who granted the dismissal. '

The justice who heard the motion had jurisdiction of the parties and of the subject-matter, and, inasmuch as the objection was not taken at the time of the argument of the motion, we think it should now be overruled. (Wiley v. L. I. R. R. Co., 88 Hun, 177; Cowenhoven v. Ball, 118 N. Y. 231.)

There was a conflict in the papers before the Special Term relating to the question whether the case was difficult and extraordinary. The Special Term was .called upon to solve that conflict, and has done so by its conclusion that it satisfactorily appeared to it that the case was hotli difficult and extraordinary; and after reaching such a conclusion it was called upon to exercise its discretion, and a perusal of the appeal book does not. lead to the conclusion that the discretion was abused. Its .order should, therefore, be sustained. (Tolman v. R. R. Co., 31 Hun, 397; Meyer Rubber Co. v. Lester Shoe Co., 92 id. 52.)

The foregoing views lead to an affirmance of the order.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  