
    NEW YORK, LAKE ERIE AND WESTERN RAILWAY COMPANY, Respondent, v. GEORGE W. CARHART, Appellant.
    
      Practice — additional allowance not allowed, to the plaintiff where the controversy has been whether his recovery should be reduced by the amount of a counter-claim and such counter-claim has been established by the defendant.
    
    Appeal from an order made at a Special Term, granting an additional allowance.
    Tlie court at General Term said: “ The dispute in this case depended chiefly upon the right of the defendant to be allowed his counter-claim. The right of the plaintiff to the money was not controverted beyond the extent of this counter-claim and certain credits which the defendant appears to be entitled to, and received upon the trial. The defendant succeeded in establishing the counter-claim, and therefore was at least a successful party in the action, and as the right of the plaintiff to the balance of the money was not contested by him, it had no material fact for the disposition of that balance to prove in the case. It was accordingly not an action in which an allowance could justly be allowed to the plaintiff, and the order making it should be reversed and the motion denied, with ten dollars costs and disbursements to the appellant.”
    
      C. B, Smith, for the appellant.
    TP". W. Maefarland, for the respondent.
   Opinion

Per Curiam.

Present —Davis, P. J., Ready and Daniels, JJ.

Order reversed, with ten dollars costs and disbursements and motion denied.  