G. Everett Angier and Kate J. Hotchkin, as Executors, etc., of Mary J. H. Angier, Deceased, Appellants, v. Minnie R. Hager, Respondent, Impleaded with Others

G. Everett Angier and Kate J. Hotchkin, as Executors, etc., of Mary J. H. Angier, Deceased, Appellants, v. Minnie R. Hager, Respondent, Impleaded with Others. Order of discontinuance ■— duty of defendant to tax costs under — additional allowance determined as of its date. Upon receiving an ex pwrte order of discontinuance, obtained by the plaintiff. upon condition that he pay the defendant’s costs, it is the duty of the defendant to proceed to have her costs taxed, and the question whether she shall be granted an extra allowance, upon the ground that the case is difficult and extraordinary within the meaning of section 3253 of the Code of Civil Procedure, will be determined upon the situation as it was at the time that such order was made. Appeal by the plaintiffs, G. Everett Angier and another, as executors, etc., of Mary J. H. Angier, deceased, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 19th day of March, 1900, granting the motion of the defendant, Minnie R. Hager, for an extra allowance of costs. Charles Strauss, for the appellants. Edgar T. Brackett, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : An extra allowance was granted to the respondent.upon the ground that the case was difficult and extraordinary within the meaning of section 3253 of the Code of Civil Procedure. We are- . of the opinion that the facts in the case do not sustain the contention of the respondent. The action was upon a promissory note for $-2,000 made by the-defendant Plainer, payable to the order of plaintiff’s testatrix, the original plaintiff in the action. Before its delivery to plaintiff, it. was indorsed by the respondent, and it is conceded by the pleadings that it was so indorsed in order to give the maker credit with the plaintiff. Its due presentment for payment and due notice to the indorser of non-payment were alleged in the complaint but denied , by the respondent .in her answer. The plaintiff resided in the county of Kings, the respondent in the county of Saratoga, and the place of trial in the complaint was the county of Hew York. The respondent when she served her answer demanded that the place of trial be changed to Saratoga county. This not being consented to, a motion was made for such change which was granted. Then the plaintiff obtained from a justice of the court in Hew York city an ex parte order for the discontinuance of the action upon the payment to the respondent of her costs to be taxed. This order was served on the respondent’s attorney on December 11,1898. It was claimed on the part of the respondent that this order was not valid, and the main difficulty which the respondent has encountered in the case has arisen from this claim in regard to which she was finally unsuccessful. (Angier v. Hager, 45 App. Div. 32.) It was her duty, upon receiving the order of -discontinuance, to proceed to have her costs taxed. (People v. Tweed, 63 N. Y. 202.) Whether the case was difficult and extraordinary must be determined upon the situation as it then was. We fail to find anything in the case up to that time from which it may be properly said that the case was either difficult or extraordinary within the meaning of the statute. It follows that the order appealed from should be- reversed. All concurred. Order reversed, with ten dollars and disbursements, and motion for extra allowance denied, with ten dollars costs.