
    D. OGDEN MILLS, Plaintiff and Appellant, v. JOHN M. WATSON, Impleaded, &c., Defendant and Respondent.
    Before Sedgwick and Van Vorst, JJ.
    
      Decided March 14, 1879.
    I. Extra allowance.
    
    1. When may be granted.
    
      (a) On the dismissal of complaint for non-appearance of plaintiff when the cause is called for trial.
    
      2. Motion fob, when may be made.
    (a) May be made at a special term for the hearing of motions.
    3. Appealability of.
    
      (a) Order granting may be appealed from to the general term.
    4. Element in granting, what is not a necessary one.
    
      (a) The fact of a trial having taken place is not.
    Prior to May, 1876, the plaintiff had taken an assignment of a bond and mortgage made by one Charles L. Cornish.
    In September, 1876, the premises were sold in foreclosure, and a judgment for deficiency was obtained against said Cornish for $36,129.18.
    Cornish was examined in supplementary proceedings, and swore that the defendant Watson had one-sixth interest in the purchase at the time of the purchase, and had paid for his interest before Cornish took the title. They were general speculators in real estate.
    
      Thereupon the plaintiff commenced an actioíffegaihst che defendants by a complaint, to recover against them as partners, under the authority of Williams v. Gillies, 13 Hun, 422; Coleman v. Eyre, 45 N. Y. 38.
    The defendant Watson amended his answer, setting up the foreclosure judgment as a bar.
    In the month of October, 1878, the case was first reached on the calendar, and inasmuch as the case of Williams v. Gillies,—the decision of which would determine the recovery in this case, —had been argued in the court of appeals, and that court had taken a recess until early in November, the case was, on plaintiff’s application, marked off, and was not again reached until January.
    The case of Williams v. Gillies was decided by the court of appeals in November, 1878. That court reversed the decision of the court below. The doctrine laid down by the court of appeals was conclusive against plaintiff’s right of recovery in this action. The counsel for both plaintiff and defendant were aware of this. Efforts were made to procure a discontinuance of the action on terms mutually satisfactory. They were unsuccessful, and finally the cause was, on January 13, 1879, called for trial at July trial term, and, no one appearing for plaintiff, the complaint was dismissed with costs as to defendant Watson. No motion was at this time made for an extra allowance. Thereafter, on- February 3, 1879, Watson noticed a motion for an extra allowance, to be heard on February 11, 1879, at a special term for the hearing of motions.
    The court, at special term, granted an allowance of $1,806.46, being five per cent, of $36,129.18, the amount of plaintiff’s claim.
    From the order entered on this decision plaintiff appealed.
    
      D. M. Porter, of counsel, for appellant.
    I. This order is appealable to the general term, and it is proper for the general term to take cognizance of it, and examine it on the merits (People v. New York Central R. R. Co., 29 N. Y. 418, 422; Clark v. City of Rochester, 29 How. Pr. 97; Gori v. Smith, 6 Robt. 563; Commissioners of Pilots v. Spofford, 3 Hun, 57).
    II. The court cannot give more than sufficient to indemnify the party for his expenses in the action upon the facts appearing upon the application (People v. New York Central R. R. Co., supra). Neither can an extra allowance be granted by a judge who did not try the action, unless the amount of expense is stated in the moving affidavits (lb.). “It should be shown not only what the expenses are for which the further allowance is claimed, but also that they have been necessarily, reasonably, and fairly incurred in reference to the trial” (lb.).
    
    III. Counsel well knew that the case of Williams v. Gillies was controlling, and that it had been decided adversely to the plaintiff’s position, and that no recovery could be had by the plaintiff, after the court of appeals had decided that such an action could not be maintained, and consequently, expenses could not be reasonably, nor fairly, nor necessarily made or incurred —especially when Mr. Knickerbacker went to Mr. Watson to get a discontinuance, he was told that the plaintiff could not recover because of the decision in the court of appeals of Williams v. Gillies (Eldridge v. Strenz, 7 Jones & Spencer, 295). Defendant has not shown the amount of any extra expenses incurred; therefore the order granting an extra allowance was improperly made. The allowance of $1,806.46 was, in any event, exorbitant and unwarranted by the facts. What would have been allowed if -the cause had been tried ? “The application should be made at the circuit, at which the case was tried, or to the justice who held the same, and to none other” (Supreme Court Rule, 47 (3); Saratoga & Washington R. R. Co. v. McCoy, 9 How. Pr. 339; Dyckman v. McDonald, 5 Id. 121).
    
      B. F. Watson, of counsel, for respondent.
    1. The order appealed from is not appealable (Code of Pro. § 309; Opinion of Hogeboom, J., dissenting, in People v. New York Central R. R. Co., 29 N. Y. 429, 430). There is no direct authority for the position that such discretion is reviewable at the general term. Should the case of People v. New York Central R. R. Co., 29 N. Y. 418, cited supra, be relied on therefor, it may be replied, that in that case the court of appeals merely decided that an order of the kind appealed from was appeal-able to the general term, that the action of the general term in dismissing the appeal was wrong, and consequently reversed the order of dismissal, without, however, in reality, deciding, or being able to decide anything as to what should be the action of the general term in considering the appeal on its merits. At the close of the opinion in the case of Southwick v. Southwick (49 N. Y. 510), the court say : “ This court cannot review the action of the court below in making an extra allowance to the defendant in addition to his taxable costs. It does not appear to have exceeded the maximum limit fixed by the„Code ” (See also Krekeler v. Ritter, 62 N. Y. 372; Stokes v. Dickenson, 5 Sandf. 663; Burhans v. Tibbits, 7 How. Pr. 74; Dickenson v. McElwain, 7 Id. 138; Wilkenson v. Tiffany, 4 Abb. Pr. 98: Union Bank v. Mott, 13 Id. 247).
    II. A trial is not a necessary element for the granting of an extra allowance when a defense has been interposed in a difficult and extraordinary case (Coffin v. Coke, 4 Hun, 618). This case required great care and previous preparation by counsel to be ready to prove and argue to this court, not only that that decision was wrong in principle, and not sustained by authority (all of which labor was incurred and preparation made before the announcement of said reversal), but also that the facts in the case at bar did not bring it within the principle of that decision.
    III. In answer to this objection, it is sufficient to say that the general term of this court has held that the motion is properly made at special term, and need not necessarily be before the same judge (Gori v. Smith, 3 Abb. Pr. N. S. 51).
   Per Curiam.

Order appealed from modified by reducing the amount of the allowance to $750.  