Wilber v. Williams , 38 N.Y.S. 893 ( 1896 )

Hardih, P. J.:

Section 3253 of the Code authorizes an additional allowance “ in a difficult and extraordinary case where a defense has been interposed in any action.” And subdivision 2 of that section authorizes the allowance to be a “ sum not exceeding five per centum upon the sum recovered or claimed.” It seems that several ineffectual efforts were made to bring the action to trial at Special ■Term, and it was set down for trial at a future day by a judge who -did not appear on the adjourned day, when.it.was finally brought to a hearing. At the hearing, several motions were, made of a. dilatory character, and one of them was based upon an affidavit verified '.October seventh by the attorney, and another one verified October eighth by the counsel for the plaintiffand after those several' motions were denied, the defendants moved .to dismiss the complaint, and the plaintiff objected on several grounds, and the complaint was dismissed with costs by Mr. justice Childs. The term was'further adjourned, and upon affidavits a motion was made at a later day in the term when the motion came on to be heard.before Mr. Justice Spuing, who had heard some- preliminary motions that had been made in the cause: Tlie record before us does not .show that any objection, was made at the time the motion was argued 'before Mr. Justice Spuing on the ground that he did not preside at the trial at ■the time the dismissal -of the action took place.. The order, does not recite any objection to the organization of the court,' and, although rule 45 provides that motions for extra allowance should be. made at a term held by the judge who presided at the trial,. We think that, inasmuch as it does not appear that the plaintiff objected at the time, the motion was presented and submitted, the plaintiff did not promptly object to the irregularity of. which he now seeks .to complain. .

Again, it appears that the object .of 'the rule was to enable the judge who is to pass upon the question whether the case was difficult and extraordinary or not, — that, he might be possessed of the facts and circumstances transpiring at the trial. (Safety Steam Generator Co. v. Dickson Co., 61 Hun, 335; Sentenis v. Ladew, 140 N. Y. 463.)

In this case there seems to have been no protracted trial, and, therefore, the reason of the rule was not violated, inasmuch as it appears that the judge who granted the motion had about as much information as to the nature of the issue, and of what transpired on the occasion of the dismissal of the complaint, as the judge who granted the dismissal. '

The justice who heard the motion had jurisdiction of the parties and of the subject-matter, and, inasmuch as the objection was not taken at the time of the argument of the motion, we think it should now be overruled. (Wiley v. L. I. R. R. Co., 88 Hun, 177; Cowenhoven v. Ball, 118 N. Y. 231.)

There was a conflict in the papers before the Special Term relating to the question whether the case was difficult and extraordinary. The Special Term was .called upon to solve that conflict, and has done so by its conclusion that it satisfactorily appeared to it that the case was hotli difficult and extraordinary; and after reaching such a conclusion it was called upon to exercise its discretion, and a perusal of the appeal book does not. lead to the conclusion that the discretion was abused. Its .order should, therefore, be sustained. (Tolman v. R. R. Co., 31 Hun, 397; Meyer Rubber Co. v. Lester Shoe Co., 92 id. 52.)

The foregoing views lead to an affirmance of the order.

All concurred.

Order affirmed, with ten dollars costs and disbursements.