
    Edward C. Allen, Pl’ff, v. George W. Allen and William H. Allen, Impl’d, Def’ts.
    
      (Supreme Court, Monroe Special Term,
    
    
      Filed April, 1887.)
    
    Costs—In partition actions—Code Civ. Pro., § 1579—Additional allowances—When they may be made to each side.
    In partition actions, where final judgment, confirming a sale, is rendered, under the provisions of section 1579, each party to the action has the right to have his costs paid to his attorneys out of the proceeds of the sale, except those costs which by the second clause of the section are within the discretion of the court.
    The action is partition; the property has been sold under the interlocutory judgment, and upon application for final judgment the plaintiff asks for an additional allowance, and the defendants George W. Allen and William H. Allen claim that they are entitled to their costs, and that they should also have an extra allowance.
    
      J. R. Strong, for pl’ff; A. J. Abbott, for def’ts.
   Angle, J.

—There is no question as to plaintiff’s right to costs, and he may have an additional allowance of $100. The right of the defendants to costs is disputed by plaintiff’s counsel. The referee who tried the issue in the action decided that from the proceeds of the sale the plaintiff’s attorneys be paid the costs and disbursements of this Action and of the issue made therein, and that no costs should he allowed against the defendants William and George Allen personally in respect to the issue made by their answer.”

In Davis v. Davis (3 N. Y. St. Rep., 163), it was held at special term that in partition actions where actual partition of the lands was made, the plaintiff was entitled to costs of course; that neither referee or court had any discretion as to costs nor could any portion of defendant’s costs be charged upon the plaintiff. There are certain provisions of the Code not applicable to cases where actual partition is made, but which are expressly applicable where sale of the land is made, which differ this case from Davis v. Davis.

Section 1579 enacts that “Where final judgment, confirming a sale, is rendered, the costs of each party to the action and the expenses of the sale, including officers’ fees, must be deducted from the proceeds of the sale and each party’s costs must be paid to his attorney.” The same section then makes other provision, giving the court discretion as to certain costs and expenses that may have arisen in the action.

I can give no other reasonable construction to the above section than that it gives to each party to the action the right to have his costs paid to his attorneys out of the proceeds of the sale, except those costs which by the second clause of the section are within the discretion of the court.

This conclusion accords with the obiter opinion of the general term in Weed v. Paine (31 Hun, 12; S. C., 4 Civ. Pro. R., 305), and with Mr. Throop’s note to section 1579, in which he says : “It is ordinarily proper that the costs of all the parties should be paid from the proceeds of the sale.”

The defendants George and William Allen may have an additional allowance of fifty dollars.  