
    Henry H. Van Meter, Respondent, v. Mary V. M. Kelly, Appellant, Impleaded with Charles Van Meter and Others, Respondents.
    Fourth Department,
    March 9, 1910.
    Costs — additional allowance — partition—appeal —review of discretionary order—case.
    Parties wishing to review the discretion of the court in making an additional allowance should see to-it that the record on appeal properly presents the question. Under section 3253 of the Code of Civil Procedure providing for additional allowances in certain actions including partition, the total additional allowances in such action made to all parties cannot exceed five per cent of the sum recovered or claimed or the value of the subject-matter involved.
    Williams and Robson, JJ., dissented.
    Appeal by the defendant, Mary Y. M. Kelly, from so much of a final judgnfent of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 19th day of May, 1909, confirming the report of a referee in an action for a partition as awards and allows to the plaintiff and to his attorney an additional allowance, and also from so much of said judgment as awards additional allowances to the attorneys for certain of the defendants.
    
      Harry E. Newell, for the appellant.
    
      Harvey. F. Remington, for the respondent Henry H. Yan Meter.
    ■ John D. Burns; for the respondents Frank M. Benjamin and others.
    
      M. H. MeMath, for the respondents Ryland M. Kendrick and others.
    
      Henry W. OonTdin, for the respondent Mary C. Morris.
    
      Eugene Baines and W. K. Van Meter, in person, for the respondent W. K. Yan Meter.
   Kruse, J.:

The only question brought up for review here is whether the-■additional allowances for costs were properly made. The action is for the partition of real property. . .

The ■ appealing defendant raises two objections to the costs so-allowed : (1) That the court had no authority to allow in the aggregate to all of the parties as such additional allowances more than five per cent of the value of the subject-matter of the action, and (2) that no additional allowance should have, been. made at all, and that in doing so there was an abuse of discretion. As regards the last point, it is enough to say that the record as made up does not show that to be so. Answers seem to have been interposed and a trial had, but the answers are not contained in the record and the parties are- not in accord as to what, if any, issues were presented thereby. Neither are there any affidavits in opposition or in support of the application for such allowances. The question of costs was determined upon the coming in of the report of sale, by the final judgment confirming the sale and directing the distribution of the proceeds. Very likely the question of costs-was disposed of upon the statements of the respective attorneys, made in court,' and the pleadings and proceedings had before the presiding judge who tried the case, with which he was familiar and of which the record does not inform us. ' If the attorneys, for the appellant desired to raise the question that there was an abuse of discretion, they should have seen to it that a record was made so as to properly present that question. ' .-

As regards the other question, it' appears that the value of that part of the property tiot sold and set apart to one of the defendants - is $2,000, and that the sum of $20,920 was realized upon the sale of the remainder, making $22,920. The plaintiff was allowed an additional allowance of three' and one-half per cent of this sum, 4 - A V which is $802.20, and each of four groups of answering defendants, appearing by separate attorneys, was awarded as an additional allowance the sum of $250; making in all $1,802.20; five per cent of the $22,920 is $1,146, so that the total extra allowances exceed that sum- by $656.20.

Section 3253 of the Code of Civil Procedure, after enumerating certain cases in which additional allowances may be made, provides that the court may also in its discretion award to any party a further sum in certain cases, among' others'in an action for the partition of real property, a sum not exceeding, five per centum .upon the sum recovered or claimed, or1 the- value of the subject-matter involved; and by the next section (section 3254) a further limitation is imposed by providing that the additional. allowances to a party or two or more parties on the same side, cannot in the. aggregate exceed $2,000.

The respondents contend that the five per cent limitation applies only to the additional allowance awarded to each party and not. to the amount of additional allowances made to all the parties in the action. The question seems to have been decided adversely to that contention by the late General Term in the Fifth Department (Fraser v. McNaughton, 58 Hun, 30, 34), and that decision was followed by the First Department in Doremus v. Crosby (66 id. 125). Counsel for the res2iondents contend that this view is contrary to the plain reading of the section of the Code referred to ; but the question was sharply raised in the last case cited, and discussed in the opinion of the court. While the conclusion there reached may not be entirely free from doubt, I think the decision should be followed until it is overruled by the Court of Appeals.

Counsel foi* the plaintiff contends .that the additional allowance made to him should not be disturbed in any event. This claim is based upon facts and circumstances stated in the brief, but not contained in the record. I think we may fairly assume that the additional allowances made to the several. parties were equally meritorious, and if so, the allowance made to each should be reduced by deducting therefrom such part of the excess as each amount so allowed bears to the total amount, and the judgment should be modified accordingly, without costs of this appeal to any party.

All concurred, except Williams, J., who dissented, and voted for reversal, and Bobson, J., who dissented, and voted for affirmance.

Judgment modified by reducing the allowances proportionately to a sum not exceeding five per cent of the value of the subject-matter of the action, and, so modified, affirmed, without costs of this appeal to any party.  