
    John Cook v. T. Stokes Dickenson.
    An ora'er, aenying an application for an allowance, under the § 308 of the code, is not an appealable order.
    (Before Oaklet, Campbell, and Paine; J. J.)
    August, 1852.
    
      J Sherwood, for plaintiff.
    
      H. Brewster, for defendant.
    An application was made to one of the justices of this court, for an allowance under the § 308 of the code. The application was denied, and a notice of appeal was given to the general term. The counsel for the defendant, on notice, now moved to dismiss the appeal, on several grounds, but relied principally on the objection that the application was made to the discretion of the court, and the order denying it, is, therefore, not appealable.
   By the Court.

Campbell, J.

The code provides that, where the action is for the recovery of money, or of real or personal property, and a trial has been had, the court may, in difficult or extraordinary cases, make an allowance in addition to the taxable costs, of not more than ten per cent, for an amount not exceeding five hundred dollars, and not more than five per cent, for any additional amount, and also, that such allowances may be made in cases of partition, foreclosure, attachment, for construction of wills, and also, in any case where the prosecution or defence has been unreasonably or unfairly conducted.

The general rule before the code was, that there could be no appeal on a question of costs merely, when the giving or withholding such costs was in the discretion of the court. (See 3 Don. C. P. 100; 1 Barbour 376; Winslow v. Collins, 3 Paige 88.) These applications for extra allowances are eminently to the discretion of the court. When it shall have been determined that the case is a difficult or extraordinary one, or that it has been unreasonably or unfairly conducted or defended, still the question as to the amount to be allowed, within certain limits, remains entirely within the discretion of the court.

The counsel for the plaintiff, contended that, under the new provision in § 349, of the amended code of 1852, where an appeal may be taken, when the order made at special term “ affects a substantial right," his proceedings were regular. It is difficult to determine precisely the meaning of the term substantial right.” The word “ right ” is of extensive and varied signification. We speak of a right of action, a right of possession, a right of property, a writ of right. A substantial, or real, or actually existing right, I apprehend, must mean some legal right to which the party who appeals, claims to be entitled. It may grow out of some adjudication of the court, on a question of fact, or of law, or both. But it must be something1 to which the party is entitled ; not something which he seeks from the favor, or asks from the discretion of the court.

We are all of opinion, that the order, in question is not appealable. The motion to dismiss the appeal must therefore be granted.  