
    Assets Collecting Company, Respondent, v. Emanuel J. Myers and Philip Kleeberg, Appellants, Impleaded with Samuel J. Goldsmith and Others, Defendants. (Action No. 1.)
    First Department,
    December 3, 1915.
    Costs — extra allowance—judgment on pleadings.
    While ordinarily the court will not grant an extra allowance in a case which has not actually gone to trial on the merits, it may make such allowance although the complaint was dismissed on a motion for judgment on the pleadings, if the case be exceptional.
    Thus, the court will make such an allowance where the complaint demanding over §1,000,000 damages for an alleged fraudulent conspiracy to throw a business firm into bankruptcy was dismissed on motion, where there were three complaints in the action with corresponding answers and replies and a large number of various kinds of motions and the plaintiff has put the defendants to the expense and trouble of defending an unfounded action for extravagant damages-
    
      Appeal by the defendants, Emanuel J. Myers and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of October, 1915, denying their motion for an extra allowance.
    
      Gordon S. P. Kleeberg, for the appellants.
    
      Lawrence E. Brown, for the respondent.
   Scott, J.:

This action was brought for the large sum of $1,040,000 claimed as damages for a fraudulent conspiracy on the part of defendants to throw the firm of Otto Heinze & Co. into bankruptcy. The action was certainly an unusual one, and may reasonably be called a difficult and extraordinary one. (See Code Civ. Proc. § 3253.) There were three complaints, an original one and two amended ones, with corresponding answers and replies. There were a large number of motions of various kinds, and finally the complaint was dismissed as the result of a motion for judgment on the pleadings. While ordinarily we are not in favor of granting an extra allowance in a case which has not actually gone to trial on the merits, we consider that this is an exceptional case. The plaintiff has put the defendants to the expense and trouble of defending an unfounded action for extravagant damages, and the cause has been terminated by a dismissal of the complaint. The argument of the motion to dismiss involved a trial of the issues of law just as the argument of the issues raised by a demurrer would involve such a trial. There is ample authority for granting an extra allowance in such a case. (Jermyn v. Searing, 139 App. Div. 116; People v. Bootman, 180 N. Y. 1; Ryan v. City of New York, 159 App. Div. 105, 116.)

We regret to observe in the respondent’s brief a totally irrelevant and improper reference to a decision of this court in a case in which one of the appellants was concerned. The practice of pursuing such tactics as this has frequently been condemned by this court and is calculated to do little good to the party who adopts it. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion granted to the extent of granting an extra allowance of $2,000 to the appellants, with ten dollars costs of motion.

Ingraham, P. J., Laughlin, Clarke and Smith, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion, with ten dollars costs.  