Frank Richards Abbey, Appellant, v. Jerome B. Wheeler, Respondent, Impleaded with Others

Frank Richards Abbey, Appellant, v. Jerome B. Wheeler, Respondent, Impleaded with Others. JSxtra allowance—what is the “ amount claimed ” —it may be applied for after the taxation and payment of costs under an interlocutory judgment. Under an allegation that the plaintiff owned certain interests in mines, out of which one of the defendants had taken minerals amounting in value to upwards of §700,000, which he sold and had received therefor to the use of the plaintiff upwards of §250,000, the smaller sum must, for the purpose of an extra allowance, he regarded as the amount “claimed or the value of the subject-matter involved.” (Code Giv. Proc. § 3253.) Buie 45 of the General Buies of Practice, providing that an application for an extra allowance “ shall in all cases be made before final costs are adjusted,” does not prevent a defendant, who has taxed and received his costs under an interlocutory judgment sustaining a demurrer to the complaint, from applying for an extra allowance, after the plaintiff's time to serve an amended complaint has expired, and before the entry of final judgment. Appeal by the plaintiff, Frank Richards Abbey, from an order of the Supreme Court, made at the Hew Ymtk Special Term and entered in the office of the clerk of the county of Hew York on the 15th day of Hovember, 1900, granting the defendant Wheeler an extra allowance of costs. Pratt A. Brown, for the appellant. Eugene Frayer, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The two principal objections urged by the appellant to the order of the Special Term granting an extra allowance are that no basis is furnished upon which the amount can be properly computed, and that the granting of the order was in violation of rule 45 of the General Rules of Practice, which provides that the application for an additional allowance “ shall in all cases be made before final costs are adjusted.” The plaintiff alleged that he had certain interests in mines, out of which the defendant Wheeler had taken minerals amounting in value to upwards of $700,000, which he sold and received therefor, to the use of the plaintiff, upwards of §250,000. Típon this allegation, ' we think, there was sufficient basis for an allowance, for the smaller sum at least must be regarded as the amount “ claimed or the value of the subject-matter involved.” (Code Civ. Proc. § 3253.). With respect to rule 45 of the General Rulés of Practice, it appears that the defendant Wheeler interposed a demurrer to the complaint, which was finally sustained at the General Term, with leave to plaintiff to amend upon payment of the costs of the action. Costs were taxed prior to the entry of the interlocutory judgment and paid to the attorney for the defendant Wheeler. ' The plaintiff’s time to serve ah amended complaint finally expired by default, after which no steps were taken by either party until a notice of motion was served by the defendant Wheeler for an allowance in addition to costs. It thus appears that the. judgment which was entered and the costs which were taxed were interlocutory and not final. Ho allowance could he granted upon an interlocutory judgment, and, therefore, none could be includéd in the costs as adjusted upon the entry of the interlocutory judgment. The rule invoked (Rule 45, General Rules of Practice) in express language provides that the application for an allowance “ shall in all cases be made before final costs are adjusted,” and it will, therefore, be seen that there is nothing in the rule which prevents a party who has taxed costs under an interlocutory judgment from applying before entry of final judgment for an allowance. Upon the merits we find no facts which would justify our interfering with the discretion exercised by the Special Term, and the order accordingly should be affirmed, with ten dollars costs and. disbursements. Van Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.