
    GORI against SMITH.
    
      New York Superior Court; General Term,
    
    
      April, 1867.
    Extra Allowances.—Motion.
    Motions for extra allowance, under Section 309 of the Code of Procedure must be made upon papers.
    Such a motion is addressed to the Court, and is not' dependent upon the recollection or discretion of the particular Judge, as an individual.
    Since the decision óf the Court of Appeals, Dec., 1865, in The People v. New Pork Central Railroad (30 Sow. Pr., 148,)—that orders for extra allowances, under section 309, are appealable—it is necessary that the facts upon which motions for such allowances are made should be presented in such a mode as to have them passed upon, on an appeal.
    Appeal from an order made at Special Term at Chambers, granting an extra allowance.
    The action was brought by Catharine Gori against Alfred 0. Smith, jr. The complaint claimed $20,000 damages for non-completion of a contract for the purchase of land. The defendant _ in his answer, besides alleging a defense, set up a counter-claim for $20,000 damages for non-performance of such • contract by the plaintiff. On this claim the plaintiff took issue by a reply.
    The action was tried before Justice MoCmw, without a jury, in October, 1864. In September, 1865, the Justice rendered a decision in favor of the defendant, but delivered no opinion.
    Three months after the decision was rendered, the attorneys of the plaintiff and defendant met at Chambers Special Term, which was then held by Justice MoCuw, and the defendant’s attorney made a motion for an extra allowance, on the ground that the action was a difficult and extraordinary one. The plaintiff’s attorney resisted the motion; Justice McCunn made an order granting to the defendant $1,000 extra allowance.
    No notice of motion or affidavits or other papers were read on such motion or served upon either party for the same.
    The plaintiff now appealed to the General Term horn this order. The only papers produced on the appeal as those on which the motion was heard, wer,e the pleadings in the action. The order did not recite .that any papers were used on the motion; ' but only that it was made by the Justice before whom the action was tried, “after hearing counsel on both sides.”
    The plaintiff moved at the same timed® dismiss the appeal on the ground that the Order was not appealable.
    
      Joseph F. Daly, for plaintiff.
    
      H. F. Hatch, for defendant.
   By the Court—Robertson, Ch. J.

Court of Appeals having held in the ■ case of The People v. The New York Central Railroad (referred to in S. C. in 30 How., 149), that an i order "for an allowance in addition to. costs, was appealable, it becomes necessary that the facts on which the motion for them is made should be presented in such a mode as to have them passed upon by an appellate court on appeal:—The principle announced was, that “an order which.peremptorily and finally charged a party with the payment of a sum of money more than he ought to pay affected his right not merely in form but substance also. In the same case, upon its return to the Supreme Court, it was suggested by that court (ubi sup) that parties claiming any additional sum ought to furnish the court with some specific facts, such as moneys actually expended or Eabilities incurred by them, or time or labor consumed by them, counsel or servants, the time consumed on the trial, the number of trials and postponements, and of arguments at a General Term, and whether there was a long account involved or a reference had.

■ The presiding justice (Blown) added, that without these the Court could not form an intelligent and satisfactory estimate of the sum to be awarded as a compensation and indemnity for the unusual and extraordinary character of the litigation. The Special Term order was reversed in that case simply because it was supposed to cover services after the entry of judgment in that court. The 52d general rule of court, it is true, provides that the application can only be made to the court before which the trial is had, or the judgment rendered. This has been supposed to mean the judge, but without reason. It is evidently meant to exclude appellate courts only, as judgment is rendered by a court, not by a judge, and “ which” does not properly apply to a person. But even if it did mean the judge, the only object would have been to enable him to determine the proper amount, as to which his discretion is final. (Cook v. Dickerson, 5 Sandf., 663; Dickson v. McElvain, 7 How., p. 139). It could never mean that such a motion was to be determined solely upon the judge’s own personal knowledge alone; in which case neither the counsel making nor resisting would know on what facts to argue, nor would the grounds of the decision appear. On an appeal, unless a statement was made by the judge before whom the motion was made, of what he considered to be facts in the case, the appeal would be nugatory, and the making of such statements would lead' to unseemly contests between the bench and thé bar as to what took place. I think, therefore, such motion cannot be made without some affidavits containing facts of the kind suggested in the case first cited, (People v. Central R. R., ubi sup) so that the grounds of the decision may appear on an appeal. In the present case nothing of the kind appears, it does" not even appear by the papers before us, that a trial has been had or in whose favor judgment has been rendered, or what disposition was made of the defendants counter-claim. After such counterclaim was made and replied to, the plaintiff could not discontinue without the defendant’s consent (Cockle v. Underwood, 3 Duer, 676), nor conld the defendant withdraw his counterclaim without the plaintiff’s consent. H it was litigated and the defendant was defeated, it would be hard to charge the plaintiff with any part of the allowance for that branch of the litigation, and it would be equitable to take it into consideration in fixing the allowance to the defendants. .In any event I think the order was made on insufficient papers, and should be reversed without costs on the merits with privilege to renew on other papers.

A separate’motion was made to dismiss the appeal upon the ground that the order was not appealable; that motion must be denied with seven dollars costs to the plaintiff.  