Durant v. Abendroth ( 1888 )

Daniels, J.

The trial included the disposition of 10 different causes of action. They were all disposed of by the court adversely to the plaintiff. The facts in five of the causes of action were substantially like those in the case of Allison v. Abendroth, 38 Hun, 586, upon which it was held by the general term that the plaintiff was not entitled to recover. This decision has since been affirmed by the court of appeals, and reported in 15 N. E. Rep. 606. These decisions leave no further ground of controversy as to the rights of the parties so far as they were presented by these five different causes of action. The other causes of action were disposed of upon other grounds arising upon the pleadings and the proofs. And, while numerous exceptions were taken to the directions givén by the court for the disposition of these and the other causes of action, neither of them seems to be well founded, and upon neither has any special reliance been placed by the counsel in support of the appeal. As to the entire action, so far as it was considered at the trial, it seems to have been rightly disposed of, and the judgment should be affirmed. The complaint included Í9 different causes of action, most, if not all, of which were acquired by the testator by assignments from the persons in whose favor they were alleged to exist. The trial of the action, as well as the preparation of the answer, required an examination into the facts of each of these causes of action; necessarily rendering the case both difficult and extraordinary, and for that reason a proper one for the exercise of the discretion given to the court to make an additional allowance of costs. The allowance which the court did make amounted to the sum of $500, which did not exceed the limits to which its discretion was subjected, for this purpose, by the Code. The order making the allowance, as well as the judgment, appears to have been supported by the facts of the case, and both should be affirmed, together with the sum of $10 costs, besides the disbursements on the appeal from the order.

Brady, F. J., concurs.