
    Kingsland et al. v. Mayor, Etc., of New York et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    Costs—Additional Allowance—Case Submitted on Agreed Statement.
    Code Civil Proc. IT. Y. § 1280, provides that, in an agreed case submitted under section 1279, the case, submission, and affidavit must be filed with the clerk, and that “thenceforth the controversy becomes an action, and each provision of law relating to a proceeding in an action applies to the subsequent proceedings therein, ” except as otherwise provided in section 1281, which prescribes that “in such an action” the costs are in the discretion of the court, but that they cannot be taxed for any proceedings before notice of trial, and that “the action must be tried by the court upon the case alone. ” Held, that a defense interposed in a submitted controversy is within the provision of section 3253, providing for an additional allowance for costs, “in a difficult and extraordinary case, when a defense has been interposed in any action. ”
    On motion for additional allowance for costs under Code Civil Proc. § 3253. For opinion on the merits of the case, see ante, 682.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      MaeFarland, Boardman & Platt, for the motion. Henry R. Beekman, contra.
    
   Per Curiam.

This is a controversy submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure. The plaintiff has prevailed, and now moves for an additional allowance, and the question arises whether the court has power to make such an allowance.in a case of this kind. That the case is difficult and extraordinary, within the meaning of the statute, hardly admits of dispute. To authorize the court to grant an additional allowance under section 3253 of the Code, on the ground that the case is difficult and extraordinary, it must be made to appear—First, that the litigation is an action; and, secondly, that a defense has been interposed. If these two facts are established, there would seem to be no doubt of the power to award a further sum in addition to costs to the prevailing party. It is clear that a controversy submitted without process as provided in the Code is an action. Section 1280 provides that the case, submission, and affidavit must be filed in the office of the clerk of the court to which the submission is made; and goes on to declare in express terms that the filing is a presentation of the submission, and “thenceforth the controversy becomes an action, and each provision of law relating to a proceeding in an action applies to the subsequent proceedings therein, ” except as otherwise prescribed in section 1281. The latter section prescribes that “in such an action” the costs are always in the discretion of the court, but costs cannot be taxed for any proceedings before notice of trial; and, furthermore, that “the.action must be tried by the court upon the case alone.” Section 1281 contains nothing else relevant to the questions arising upon this motion. We think it is equally plain that, in a submitted controversy of this kind, a defense is interposed within the meaning of section 3253 of the Code of Civil Procedure. The position of the defendant is the same as that of a defendant who demurs to the complaint in an ordinary action. He admits the facts as alleged, but denies that they entitle the plaintiff to any relief as against him. The hearing before the general term is practically the trial of an issue of law. Neilson v. Insurance Co., 3 Duer, 683. It is defined by the Code to be a trial. In an ordinary action, an extra allowance may be granted to a defendant who has demurred. Railroad Co. v. Harold, 30 Hun, 466. The demurrer is deemed to be a defense under section 3253. A defendant in an action growing out of a submission to the general term upon agreed facts should be regarded as having interposed a demurrer; and hence the court possesses the power to award him an additional allowance by way of costs, if the case is difficult and extraordinary. In our opinion, the motion should be granted.  