Thomas D. Penfield, Guardian, etc., Respondent v. Sarah James et al., Appellants

Thomas D. Penfield, Guardian, etc., Respondent v. Sarah James et al., Appellants. (Argued April 22, 1874; decided May 1, 1874.) This was an action to foreclose a mortgage. Defendants, Sarah James and Edward D. James, the mortgagors, appeared and defended. Before trial said defendants, by notice in due form, offered to allow judgment for a sum specified, with interest; plaintiff did not accept; on trial, a judgment was rendered for a sum slightly in excess of that offered; on appeal to the General Term, the judgment was reduced to a sum less than the offer; on motion, after the trial, by an order dated May 6, 1870, an extra allowance of three per cent was given to plaintiff; on appeal from this order, this was reduced to two and one-half per cent, by order dated February 1st, 1871; on the appeal from the judgment, the General Term gave leave to either party to apply to the Special Term for readjustment of costs; defendants thereupon moved for readjustment; it was ordered that plaintiff recover costs and disbursements prior to defendants’ offer, and statutory allowance and legal disbursements for computing amount due as to defendants not answering, and that defendants recover costs and disbursements subsequent • to the offer, and that plaintiff have the extra allowance fixed by said order of General Term. Both parties appealed. The General Term reversed so much of the order appealed from as held the offer of judgment sufficient, and awarded costs to defendants. Plaintiff subsequently moved, at Special Term, for full costs and disbursements, which was granted. This order was affirmed on appeal by the General Term, and judgment was entered September 17, 1872, giving plaintiff full costs with the extra allowance. Defendants appealed from the judgment and the various orders of the General Term above mentioned. Helot, in substance, that plaintiff was entitled to full costs, but not to an extra allowance. Samuel Hand for the appellants. Amasa J. Parker for the respondent. Agree to modify judgment and orders by disallowing and striking out the amount of the extra allowance awarded by order of Special Term, of date May 6, 1870, and also that awarded by order of General Term of February 1, 1871, and by judgment of September 17, 1872, and that otherwise judgment and orders appealed from be affirmed. [MAJORITY] All concur, except Folger, J., not voting. No opinion. Ordered accordingly.