
    (83 Hun, 541.)
    KAHN v. SCHMIDT et al.
    (Supreme Court, General Term, First Department.
    January 18, 1895.)
    Costs—Extra Allowance in Equity Case.
    Where the trial judge in an equity case does not award costs, a different judge, at special term, has no authority to grant an extra allowance, as such allowance cannot be made unless the party is entitled to costs.
    Appeal from special term, New York county.
    Action by Mayer Kahn against Henry C. Schmidt and others to set aside the cancellation of a contract for the sale of real estate, on the ground that it was procured by fraud, and for specific performance of such contract. From a judgment dismissing the complaint, with costs, and from an order granting an extra allowance, plaintiff appeals.
    Modified.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    Joseph Kting, for appellant.
    Louis Cohen, for respondents.
   PER CURIAM.

The suit was in equity, and whether costs should be granted was therefore committed to the discretion of the trial court. Costs were not awarded to the prevailing party by the decision, and the entry of a judgment by the clerk awarding costs was in such respect erroneous. The court had not settled the judgment to be entered, and the clerk was wholly without authority to perform that duty for it. As the trial court did not award costs, a different justice, sitting at special term, could not grant an extra allowance, for there can be no extra allowance unless the party asking for it is entitled to costs, either by virtue of statute or the decision of the court. Had there been a legal basis for the granting of an extra allowance, we think the motion should have been denied. The evidence relating to the merits of the controversy was not of such a character as to support the relief asked for in the complaint. It should, however, have the effect of persuading the court that in this suit, if ever, costs should be denied the prevailing party. The judgment should be modified by striking out the provision awarding costs. The order granting the extra allowance should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs.  