
    Andrew J. Shiels et al., Resp’ts, v. Sigismund B. Wortmann et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Costs—Extba allowance.
    Plaintiffs, as distributees under a will, brought this action against defendants, as executors, to recover damages for their misconduct. They submitted to a nonsuit, which was afterwards opened, and after defendants had accounted again submitted to a nonsuit. Held, that defendants were entitled to an extra allowance.
    Appeal from order denying defendants’ motion for an extra allowance.
    
      Johnston & Johnston, for app’lts; W. J. Gaynor, for resp’ts.
   Barnard, P. J.

The case was a proper one for an additional allowance. One Thomas Smith died leaving a will by which he made his widow, Margaret Smith, and the defendant, Wortmann, his executors. Wortmann alone qualified. The complaint alleges that the executor Wortmann and the widow by fraud and collusion obtained a large part of the property of deceased. The plaintiffs are children of testator’s sister and are entitled to distribution under the will.

Answer was put in denying the fraud and Wortmann alleged a full settlement of his doings before the surrogate of the proper county. The plaintiffs consented to a nonsuit and subsequently had the default opened after some delay in performing a condition mposed upon opening the same. The case went upon the day calendar and was there ready for trial for seven days. Upon the call of the case and at the commencement of the trial the plaintiffs again submitted to a nonsuit. It appears that the defendant Wortmann has finally accounted before the surrogate and that is the reason assigned for the abandonment of the prosecution of the trial. The defendants ought to be compensated by an extra allowance.

The order is reversed, with costs and disbursements.

The motion cannot properly be granted. The amount is to be , settled according to the discretion of the special term.

Pratt and Dykman, JJ., concur.  