
    ROSE McDONALD, Administratrix, &c., Respondent, v. CHARLES H. MALLORY, and others, Appellants.
    
      Costs.
    
    1. Extba allowance.
    
      (a) On demurrer to complaint, when not grantable on.
    
    Where the court of appeals reverses a judgment of the general term in favor of the defendant on his demurrer to the complaint, and orders judgment for the plaintiff on the demurrer, with leave to the defendant to answer, on payment of costs, within a certain time, an extra allowance cannot be granted, within that time, so that the same shall become a pa/i't of the costs to be paid as a condition precedent to answering.
    
    Before Curtis, Ch. J., and Speir, J.
    
      Decided February 2, 1880.
    A demurrer was interposed to the complaint, which was sustained by the special and general terms of the court, but overruled by the court of appeals, which ordered judgment for the plaintiff on the demurrer, with
    
      leave to the defendants to answer on payment of costs within thirty days.
    Before the expiration of the thirty days the plaintiff obtained an order at special term, which was opposed by the defendants, granting an extra allowance to the plaintiff of §150. The defendants appeal from the order.
    Butter, Stillman & Hubbard, attorneys, and of counsel, for appellants :
    I. Upon a decision and order overruling a demurrer to a complaint, where leave is granted to the unsuccessful defendants to answer over on payment of costs of the demurrer, and the decision does not work a discontinuance of the action or result in a final judgment terminating the action, but where the defendants proceed to answer under the leave granted and raise an issue for the trial term, no extra allowance should be granted. The case of Moulton v. Beecher (1 Abb. New Cas. 245), was a case where the plaintiff discontinued, and a small additional allowance was granted to the defendant as a condition of the discontinuance. The case of Lowry v. Inman (6 Abb. Pr. N. S. 394), was a case where leave was denied the plaintiff to amend and plead over, and a final judgment was entered in defendant’s favor on the demurrer. The case of Small v. Ludlam (1 Hilt. 307), was a case where the plaintiff did not avail himself of the leave given him to amend, but appealed to the general term, and the defendant had final judgment. In all of these cases it will be seen that there was either a discontinuance, or leave to plead over was denied, or the party did not avail of such leave, and a final judgment was rendered on the demurrer, terminating the action. Hone of these conditions exist in the present case; there is no discontinuance or final judgment, but the defendants have, leave to answer over on payment of the usual costs of the demurrer, and they proceed to avail themselves of that leave and to serve their answer, and thus to raise an issue of fact for trial at the regular trial term of the court.
    II. There is no practice prevailing either in this court' or in the supreme court, sanctioning such an order as the one appealed from here. The usual and settled practice is to grant leave, where a demurrer has been interposed in good faith, to plead over on payment of the usual and ordinary costs of the demurrer, which are the costs of the action up to that time, and it is respectfully submitted that in a case like this no additional allowances should be granted, but that question should be left until the trial is had at the trial term.
    III. It is quite settled that there cannot be two extra allowances granted in the same action (Brewer v. Brewer, 11 Hun, 147; Union Trust Co. v. Whiton, 17 Id. 593; Flynn y. Equitable Life Assurance Society, 18 Id. 213). And this being so, it is proper that the prevailing practice should not be disturbed and altered, but that the question of additional allowance should be left to the discretion of the justice presiding at the trial term when the case comes before him for trial upon the issues joined under the answer, and, if the plaintiff is successful, an extra allowance would, in a case like this, undoubtedly be granted. The question should, therefore, be left to the trial term, and not be entertained here now; especially where the terms of the privilege of answering over have already been stated and imposed by the court of appeals in its decision clearly and without any ambiguity. If this rule is changed, it will follow that this court will be repeatedly called upon to grant an allowance wherever a demurrer is overruled or sustained at special term, and if granted, thus preclude the party from applying for or obtaining an allowance on the trial, a change of practice which would invert the usual order of procedure, and which would be extraordinary and unnatural.
    Benedict, Taft & Benedict, attorneys, and of counsel, for respondent:
    I. The court has power to make the order. 1. The language of the Code is as follows : “ In difficult and extraordinary cases (1) where a defense has been interposed, or (2) in such cases when a trial has been had, the court may, in its discretion, make a further allowance to any party not exceeding five per cent, upon the amount of recovery, or claims or subject-matter involved.” a. Conceding the case to be difficult and extraordinary, the granting of an allowance was in the exercise of a sound discretion, b. A trial has been had. In Small v. Ludlow (1 Hilt. 307), and in Lowry v. Inman (6 Abb. Pr. N. S. 405), the argument of a demurrer was held to be a trial, and the successful party had an extra allowance. So in Moulton v. Beecher (1 Abb. New Cas. 193, 245), the argument of an unsuccessful demurrer was held to be a trial within section 309 of the Code of Procedure. 2. The court has the power to grant, and does grant, allowances in such cases where no trial has been had, viz.: on the overruling of a. demurrer for frivolousness (First National Bank of Pittsburgh v. Bush, 47 How. Pr. 78); on the discontinuance of an action (Id.; Bartlett v. Lord, Supreme Court, 1st Disk, 1879 ; and see Carter n. Clark, 2 Sweeny, 188; Coffin v. Coke, 4 Hun, 616, and cases cited; Robins v. Gould, 1 Abb. New. Cas. 133). 3. It was urged on behalf of appellants that to entitle a party to an allowance final judgment must be had. But the Code provides for allowances not only on the amount of the recovery, but on the claim involved, and nowhere makes a final judgment a prerequisite to an allowance. But a final judgment has been had, so far as the issue which has been tried is concerned. The issue of law has been tried and finally disposed of, and on that issue the plaintiff has recovered a judgment for costs. 4. The point was taken below, on behalf of the appellants, that but one allowance may be made in an action. We submit that the true statement of the proposition is, that but one allowance may be made on the trial of an issue ; but that an allowance may be made on each separate trial of an issue, though in the same action. 5. The question, however, as to whether a further allowance may be made in the event of judgment for damages being finally recovered by plaintiff, though raised, was not considered below, and does not'properly arise here, and need not be discussed.
   By the Court.—Speir, J.

The question presented by this appeal is whether the court has power to make the order appealed from.

The demurrer raised the point that a certain statute of this State has no operation on the high seas. It is not doubted that this case was difficult and extraordinary within the meaning of the Code. It received the most deliberate consideration, as appears from the able opinions which were delivered by both courts.

Although an additional allowance, when properly granted, becomes a part of the costs of the action awarded by the Code to the successful party (Commissioners of Pilots v. Spofford, 3 Hun, 57), it becomes a grave question whether it can be inferred that the court of appeals intended that an extra allowance should be included in the costs when a provision is made in its decision, that the defendant have leave to answer on payment of costs. This is not the final costs in the action, and is so determined by the court. The question then is presented, has the court the power to award an extra allowance in any case until the termination of the action. We have decided, this present term, that neither costs nor allowances can be awarded since the adoption of the Code, unless authorized by law. The discretion to be exercised by the judges in the awarding of, and adjusting of costs and allowances must be limited and controlled by statutory authority. The cases are numerous which seem to justify an allowance when a plaintiff voluntarily submits to a nonsuit or discontinues after issue joined. A trial is not now a necessary element, when a defense has been interposed in a difficult and extraordinary case, nor is it deemed necessary that a judgment should be actually entered. The statute authorizes all these, and within the authority of the statute the courts may exercise their discretion. The test must be, that the action has terminated in such form that the successful party can lawfully claim the payment of the costs on such termination, and enforce their payment in any mode known to the practice. We know of no case, nor has any been furnished us, which does not come within this rule. If extra allowances can be made now, there can be no good reason why they should not again be allowed every time the court of last resort sends a case down for a new .trial upon similar terms, and even in the same case. There cannot be two extra allowances granted in- the same action, although the case may have been tried several times (Flynn v. Equitable Life Assurance Society, 18 Hun, 212). This furnishes a conclusive argument that extra allowances can only be made when the action is finally ended.

The order of the special term appealed from should be reversed, with costs.

Curtis, Ch. J., concurred.  