
    The Metropolitan Elevated R. R. Co., Resp’t, v. Charles Duggan et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Costs—Allowance to several deebudants.
    There were originally nine defendants. Judgment was rendered in their favor on demurrer, with separate costs to some, and an extra allowance to all. The judgment was reversed hy the court of appeals as to all except these two defendants. Held, that they were entitled to statutory costs, hut were not entitled to more than their proportion of the allowance; if, indeed, they are entitled to any of it, as the court has never awarded any to them alone.
    
      Appeal from order directing clerk to satisfy judgment, etc.
    
      George W. Weiffenbach, for appl’t; Brainerd Tolies, for resp’t.
   Van Brunt, P. J.

This action was brought against the defendants Duggan and Slayback, together with seven others. Judgment was rendered in favor of the defendants upon demurrers, and separate bills of costs were awarded to some of the defendants; and $750 was awarded to all of the defendants in addition to costs.

The judgment was affirmed at general term, and separate bills of costs were taxed by the same defendants. The court of appeals reversed the judgment as to all of the defendants except Duggan and Slayback, as to whom it was affirmed, without costs.

These defendants claimed that they were entitled to be paid in full, the judgments of general and special terms for costs and also the allowance in addition to costs of $750. The plaintiff claimed that they were only entitled to their proportionate share of each. A motion was made for an order that, the clerk satisfy judgments on payment of such proportion. The court denied this motion, but held that Duggan and Slayback were entitled to full costs at general and special terms and to their proportionate share of the allowance, viz., two-ninths.

From this order Duggan and Slayback appealed, and the only question presented is, are they entitled to the whole allowance ?

It would seem to be a sufficient answer to this claim that no such allowance has ever been made to them. Additional allowances are within the discretion of the court; and no court has as yet exercised its discretion in their favor. The allowance as made was to all the defendants, not to Duggan and Slayback; and if the respondent had appealed it might be claimed with much greater force that they were not entitled to receive any allowance, and the court has never awarded any to them alone.

It is urged that there is no difference, as far as the rights of Duggan and Slayback are concerned, between the costs and the allowance; and that it is just as idle to speculate as to what allowance would have been awarded to them alone as it is to speculate on the amount of costs which they would have had.

We think that a part of this proposition is probably true, and ’ that it is idle to speculate what allowance Duggan and Slayback would have had if successful alone; and therefore probably no part of the allowance should have been awarded them as the discretion of the court, as we have said, has never been exercised in their favor under these circumstances.

As to the costs, however, the situation is different. As far as appears from the appeal papers Duggan and Slayback were entitled as matter of right to costs, their amount is fixed by statute, and there is no speculation about it when they are awarded statutory costs.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concur.  