
    THOMAS P. ELDRIDGE, et al., Survivors, &c. Plaintiffs and Respondents, v. ADOLPH C. STRENZ, et al., Defendants and Appellants.
    APPEAL PAPERS.
    The general term on appeal, should have all the papers upon which the order appealed from was based, placed before it.
    In this case the remittitur from the court of appeals to this court, which was before the special term, does not appear among the papers.
    COSTS—EXTRA ALLOWANCE.
    If the court before which the final determination in the case was had, does not direct an allowance in its judgment, there is no authority elsewhere to adjudge it (McGregor v. Buell, 1 Keyes, 157, 158).
    The 56th rule of practice limits this application to the court before which the trial is had or the judgment rendered.
    In the case at bar, the plaintiff recovered judgment after a trial before a jury, and an allowance was made to him. The defendant appealed to the general term of this court, and the .judgment was-recovered and a new trial ordered. From this decision the plaintiff appealed to the court of appeals, making the usual stipulation required, that absolute judgment should be rendered against him, if the judgment should be affirmed. It was affirmed, and on the remittitur to this court and on affidavit, the defendant moved at special tern for an allowance, and the motion was denied. Held, no express provision of the code exists, that provides for an allowance in a case like the present, where a judgment has been rendered by the court of appeals under this form of stipulation; and as, from the nature of the proceeding, it might be often inequitable that there should be an allowance, it is more reasonable to consider that there should not be one granted than to seek for it from analogy and implication.. Order of court below affirmed.
    The legislature by the word “defense” in the 309th section of the code, meant something more than a case in which an answer or demurrer only was interposed ; it never contemplated that in such a case the plaintiff should be subjected to any greater payment of costs, than the usual fixed amount of taxable costs.
    Oh. J. Monell, in a dissenting opinion, holds substantially that in this and all other like cases, the special term of this court could exercise its discretion after the judgment of the court of appeals, and that in all cases where a defense (by pleading) had been interposed, an allowance to the successful party was within the discretion of the court.
    Before Monell, Ch. J., and Curtis and Speir, JJ.
    
      Decided May 3, 1875.
    Appeal from an order of the special term denying defendant’s motion for an extra allowance.
    The action was to recover the amount of a promissory note. The issue formed by the defendant’s answer was tried by a jury. The plaintiff had a verdict, .and judgment was rendered in his favor. The court, granted plaintiff an extra allowance of two and one-half per cent, on the amount of the verdict.
    The defendant appealed from the judgment to the general term, where the judgment was reversed and a new trial ordered, with costs to abide the event. From the judgment of the general term, the plaintiff appealed to the court of appeals, making the usual stipulation required, that absolute judgment should be rendered against him in case of affirmation of the judgment below. The court of appeals affirmed the judgment of the general term, and rendered absolute judgment in favor of defendant, and against the plaintiff for costs.
    The judgment of the court of appeals was remitted to, and became the judgment of this court.
    The defendant thereupon moved for an extra allowanee of costs at the special term of this court, and the motion was denied for “ want of power in this court to grant the same, and for no other reason.”
    Miller, Feet & OpdyTce, for appellants.
    
      G. A. Seixas, for respondents.
   By the Court.—Curtis, J.

It appears from an affidavit on the part of the plaintiff, that the plaintiff appealed to the Court of Appeals, from a judgment of the general term reversing a judgment of the special term in his favor, and granting a new trial, and stipulated that should the judgment appealed from be affirmed, judgment absolute should be rendered against him.

Under this stipulation, the Court of Appeals after a hearing, ordered judgment absolute against the plaintiff. The motion at special term for an allowance was made, not only upon the affidavit above referred to, but upon the remittitur from the Court of Appeals, which was presented to the judge, who made the order appealed from, and is referred to in that order.

The papers on this appeal, do not contain the remittitur, and the general term under the rules and practice of the court ought, on appeal, to have all the papers upon which the order appealed from is based, placed before it.

Especially is this the case, when the court is called upon to take some action incident to the judgment contained in that very remittitur from the Court of Appeals. Even if we bad it before us, it does not seem clear that this court has any power to add any further adjudication or order to the judgment contained in that remittitur, or to supply any omission or defect. If that court before which the hearing or determination under the stipulation was had, does not direct an allowance in its judgment, there does not appear to be authority elsewhere to adjudge it (McGregor v. Buell, 1 Keyes, 157, 158). There is another difficulty in our attempting to pass upon it, as the 56th rule limits this application to the court before which the trial is had, or the judgment rendered.

ISTo express provision of the code exists granting an allowance in a case like the present, where a judgment is rendered under this form of stipulation, and as from the nature of the proceeding it might be often inequitable that there should be an allowance, it is more reasonable-to consider that the legislature intended that there should not be one granted, than to seek, for it from analogy and implication.

In that class of cases, where the court has power to grant allowances provided for in the 309th section of the code, in which it is stated, they may be made “in difficult and extraordinary cases, where a defense has been interposed,” there is reason to believe, that the legislature intended by the use of the word “ defense ” to mean something more than an answer or demurrer being interposed, as it may be claimed that it is employed in distinction from those terms ; and if the legislature had intended to refer simply to the interposition of an answer or demurrer, it would, as in other instances throughout the code, have used those specific terms. In addition, it maybe fairly assumed, that as in the current affairs of all enlightened communities, men are encourged to seek a peaceful and just solution of questions and controversies, by commencing suits, the occasion for which often ceases on the interposition of merely an answer, that the legislature never contemplated that in such contingencies, a plaintiff should be subjected to any greater payment than the fixed and determined amount of costs which has usually been given. It can not be presumed that under such circumstances, it was intended to subject the plaintiff to the hazard of being obliged to pay in addition, sums that under the name of allowances, may be severe and ruinous to the law-abiding and peaceable suitor.

The order appealed from should be affirmed, with costs to the respondent.

Speir, J., concurred.

Monell, Ch. J. (dissenting).

There is no restriction as to the time when an application for a further allowance may be made, except that it must be before the final costs are adjusted (Rule 56).

In this case the defendants were not in a condition to make the motion until judgment was entered upon the remittiur from the court of appeals. The trial before the jury resulted adversely to the defendant. In reversing the judgment and ordering a new trial, the costs of the appeal were made to abide the event of the second trial. But the plaintiff prevented the second trial by an appeal from the order.

The judgment of the court of appeals upon such appeal was the first and only absolute award of costs to the defendants.

They were, therefore, in time in making their motion. It could not be made at any previous time.

The question, therefore, upon this appeal is whether it was a case in which the court below could exercise its discretion.

The code permits the allowance to be made in cases, where a defense has been interposed, or in such cases where a trial has been had.”

I am of the opinion that, for the purposes of this question, a trial was had in the case, and, therefore, the court could have granted the extra allowance.

There was an actual trial of the issues before a jury, which resulted adversely to the defendant. That was the only trial had in the case.

I do not regard the argument of the successive appeals as trials within the meaning of the law, as has been done in some cases (Van Schaick v. Winne, 8 How. Pr. 5; Sutherland v. Tyler, 11 Id. 251; Seguine v. Seguine, 3 Abb. Pr. N. S. 442). For such arguments and proceedings a compensation is fixed.

A trial is a judicial examination of the issues, whether of law or fact, and not a review of such examination upon an appeal from the decision. The appellate court corrects any errors of the trial. It has-no original jurisdiction to try the issues, or to judicially examine them, further than to see that the judgment under review is correct.. The only trial, therefore, is at the special term, before the court, with or without a jury.

The trial which was had in this case was sufficient, I think, to empower the court to grant the allowance.

The effect of the judgments upon the several appeals, is, that the judgment entered upon the verdict of the jury was erroneous—that it should have been for the defendants, or that the plaintiff’s complaint should have been dismissed. Had there been such a result at the trial, the power to give the defendants a further allowance, could not be doubted. The effect is not lessened by having the errors of the trial corrected by the court upon the appeal; and their judgment must be regarded as the judgment which ought to have been rendered on the trial.

For all purposes of costs, therefore, a trial was held in this case ; and the court had power to use its discretion upon the defendants’ motion.

But further, I think a correct construction of the 309th section of the code gives power to the court in this case, irrespective of the actual trial.

A defense had been interposed.

The section, as amended in 1865, apparently provides for two cases,—first, where a defense has been in terposed, and, second, where a trial has been had ; so that the section may be read;—in difficult and extraordinary cases where a defense has been interposed ; and in difficult and extraordinary cases where a trial has been had. But as there can not be a trial unless a defense has been interposed, the legislature meant to confer power on the courts to give the allowance in all cases where a defense was interposed, whether a trial was had or not. So that if the plaintiff discontinued the action before trial, the court could still grant the allowance. For the allowance is not merely to compensate for an actual trial, but also for the labor and expenses of preparing for the trial (McQuade v. N. Y. & Erie R. R. Co. 5 Duer, 613).

Had the legislature intended to restrict the power to cases of trial only, they would not have disconnected them, but would have provided that when a defense was interposed and a trial had, the allowance might be made.

For the reason, therefore, that a defense having been interposed, as well as for the reason that a trial had been had, the case is one in which the court in its discretion may make a further allowance of costs to the defendants.

The order should be reversed, and the special term should be allowed to exercise its discretion upon the motion.  