
    Augusta L. MacFarlane et al, Plaintiffs, v. John V. Brower et al, Defendants.
    (Supreme Court, New York Special Term,
    April, 1909.)
    Costs — Additional allowance by way of costs — Persons entitled or liable — Particular persons entitled — Guardians ad litem; As between codefendants.
    The allowances to the parties in an action of partition may not in the aggregate exceed five per cent, of the value of the property sought to be partitioned. No allowance in addition to the taxable costs may be granted to the guardian ad litem of infant defendants having no personal interest in the proceeds of sale, and no additional allowance may be granted to the mortgagee.
    
      Motion to confirm referee’s report of sale and for final judgment.
    William H. Good, for plaintiffs.
    Mathew C. Fleming, for defendants John V. Brower and others.
    Hill, Lockwood, Redfield & Lydon (Robert L. Redfield, of counsel), for defendant Emma F. Baltazzi.
    George FT. Whittlesey, guardian ad litem for infant defendants Henry B. Manning and John L. Manning, etc.
    Deyo & Bauerdorf (Howard C. Taylor, of counsel), for defendant Irving Savings Bank, mortgagee.
    George S. Billings, for defendants Catherine W. Lovett et al.
    J. J. Karbry O’Kennedy, guardian ad litem for infant defendant Shaw Lovett.
   Giegerich, J.

Motion to confirm referee’s report of sale and for final judgment granted. Hnder the rule laid down in Dor emus v. Crosby, 66 Hun, 125, there cannot be allowed to the parties in the aggregate more than five per cent, upon the whole value of the property sought to be partitioned. In other' words, where the property brings $80,000, or more, $4,0'00 can be awarded in the aggregate, or $2,000 to each side. The infant defendants, Henry B. Manning, Jr., and John L. Manning, have no present interest in the proceeds of the sale, and, therefore, an allowance in addition to the taxable costs cannot be made to their guardian ad litem. Matter of Holden, 126 N. Y. 589, 596; Doremus v. Crosby, supra; Matter of Robinson, No. 2, 40 App. Div. 30; Walter v. Walter, 60 Misc. Rep. 570. The latter is, therefore, entitled to taxable costs and no more out of the estate, and, as his wards have no present interest, there is nothing out of which an allowance can he made to him. An additional allowance cannot be granted to the mortgagee. Doremus v. Crosby, supra,. An additional allowance, estimated upon the amount realized, above mortgages, upon the sale of the various parcels of land in suit, in conformity with the rule laid down in Doremus v. Crosby, supra, is made to each of the following parties litigant, viz.: The plaintiffs, $1,300; the twenty-one defendants who are represented by Mr. Matthew C. Fleming, $25; the defendant Baltazzi, $275 ; the defendants Arthur W., John E. and Clara Lovett, $50; the guardian ad litem for the defendant Shaw Lovett, $50, in addition to taxable costs. The final judgment will be settled on notice. The defendant Baltazzi ought to submit and serve a form of final judgment containing a provision of the character referred to in her counsel’s brief.

Ordered accordingly.  