
    HUBER v. CLARK et al.
    (Supreme Court, Appellate Division, Second Department.
    May 12, 1905.)
    Costs—Difficult and Extraordinary Cases—Extra Allowance under Statute.
    Code Civ. Proc. § 3253, subd. 2, provides that in a difficult and extraordinary case the court may, in its discretion, award an extra allowance. Plaintiff’s claim was not in issue under the pleadings, nor litigated at the trial, defendants having admitted it; but defendants’ counterclaim was persistently litigated, and the jury found in their favor for a substantial sum, though less than that claimed. Held that, though the case was a difficult and extraordinary one, this resulted from the contest over the counterclaim, and an extra allowance to plaintiff was unauthorized.
    Appeal from Special Term.
    Action by Hugo F. Huber against Bernard S. Clark, as temporary administrator, and others. From an order granting defendants’ motion to amend the minutes of the trial and judgment by striking out that part thereof awarding an extra allowance to plaintiff, he appeals. Affirmed.
    The following is the opinion of the court at Special Term (Garret-son, J.) :
    In their answer the defendants admitted the right of the plaintiff to recover the amount demanded in the complaint. At the opening of the trial the defendants renewed this admission, and claimed the affirmative of the issues which arose upon the plaintiff’s reply to the counterclaim set forth in the answer, and the same was allowed to them by the court, and the trial proceeded accordingly. The jury found in the defendants’ favor upon the counterclaim, for a substantial amount, although largely less than the amount claimed by the defendants, and rendered a verdict in plaintiff’s favor for a sum of money which represented the amount admitted-to be due to the plaintiff after'deducting the amount found by them to be due to the defendants upon their counterclaim. The plaintiff’s claim, as sued for, was not in issue upon the pleadings, and his right to recover it was not litigated upon the trial. The defendants’ counterclaim was in issue, and was actively and persistently contested, and the defendants prevailed thereon. I am of the opinion that the granting of an extra allowance to the plaintiff was unauthorized. N. Y., L. E. & W. E. K. v. Carhart, 39 Hun, 363; Commercial Bank v. Hand, 27 App. Div. 145, 50 N. Y. Supp. 515. The case was indeed a difficult and extraordinary one, but this resulted from the contest which arose upon the counterclaim, in which, as stated, the defendants prevailed.
    The minutes of the trial and the judgment should be amended by striking out that part of the same which awarded an extra allowance to the plaintiff.
    ' Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, HOOKER, RICH, and MILLER, JJ.
    Francis B. Mullen, for appellant.
    John R. Abney, for respondents.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, upon the opinion of Garretson, J., at Special Term.  