
    Laura H. Meeker, as Administratrix, etc., of William H. Meeker, Deceased, Respondent, v. C. R. Remington & Son Company, Appellant.
    (No. 2.)
    
      Additional allowance—where the verdict ■upon which it is based is set aside the allowance falls with it.
    
    The plaintiff in an action to recover damages resulting from the death of her intestate, obtained a verdict for §5,000 and an extra allowance of §150. The • Appellate Division reversed the judgment entered upon .the verdict and ordered a new trial. Upon the new .trial the plaintiff obtained a verdict for $5,650 and made a motion for an extra allowance upon that sum, which was denied. ■ . "
    
      Held, that the plaintiff was entitled to the costs of. the first trial, but not to the additional allowance of §150 granted to her upon that trial, for the reason that the additional allowance fell when the verdict, upon which it was based, was set aside.
    Appeal by the defendant, O. R. Remington & Son Company, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of. Jefferson on.the 10th day of December, 1900, denying the defendant’s motion to reduce the plaintiff’s costs in the action.
    
      Watson M. Rogers, for the appellant.
    
      Henry Pureell, for the respondent.
   Adams, P.. J.:

This is an appeal from an order of the Special Term denying the defendant’s motion to reduce the plaintiff’s costs by striking therefrom certain objectionable items..

It appears that the case has been twice tried. Upon the first trial a verdict of $5,000 was rendered, upon which recovery the trial justice granted an additional allowance of $150. But the judgment entered thereon was thereafter reversed and a new trial' ordered by this court. (53 App. Div. 592.) Upon the second trial a recovery of $5,650 was had, and a motion was subsequently made by the plaintiff for an additional allowance upon that sum,' which was denied by the trial court. The plaintiff thereupon proceeded to tax her costs, including therein the costs of the first trial and likewise the allowance of $150 granted upon the first recovery, all of which were allowed by the taxing officer. A motion was thereafter made at Special Term to strike out the costs of the first trial and the additional allowance, which motion was denied, and from the order denying the same this appeal is brought.

We are of the opinion that in so far as the order appealed from denied the motion to strike out the costs of the first trial, it was proper. These costs are designed to compensate the plaintiff for certain steps taken during the progress of the litigation, and by the provisions of section 3228 of the Code of Civil Procedure she was entitled to recover the same, of course, upon the rendering of a final judgment in her favor in the action. But the same is not true of the item of $150. This was in the nature of an extra allowance to the plaintiff, which is provided for by subdivision 2 of section 3253 of the Code of Civil Procedure. Its allowance is dependent upon the fact that the action is a difficult and extraordinary one and rests largely in the discretion of the court. Moreover the amount thereof is expressly limited to a sum not exceeding five per centum upon the amount of the recovery or claim. In the present instance it was allowed at the rate of three per centum upon the recovery of $5,000, and manifestly that recovery was the basis, and the sole basis, upon which the allowance was granted and computed. It would seem to follow, therefore, that the right to the allowance was lost with the extinguishment of the basis upon which it depended.. A different construction of the statute would inevitably lead to much confusion and quite possibly to a- disregard of the limitation which it contains. To illustrate: If the recovery upon the second trial had been but $1,000, no court would have felt at liberty to have granted the plaintiff a greater sum by way of additional allowance than $50; and yet, if the original allowance is to stand, the plaintiff would be permitted to recover three times as much as the statute allows. It is quite apparent that this construction was given to the statute by the plaintiff herself, else she would not have made a second application at the conclusion of the last trial, for surely it will not be contended that the plaintiff is entitled to' an additional allowance every time her case is tried. The view we take of the question leads to the conclusion that the order appealed from should be reversed, so far as this item is concerned, and that such item of $150 should be eliminated from the judgment; but, inasmuch as the defendant has appealed from the entire order, no costs should be allowed to either party.

All concurred.

So much of the order as grants an additional allowance of costs reversed and judgment modified by striking out item of $150, as of the date of entry, without costs.  