Hackett v. Equitable Life Assurance Society

Gildersleeve, J.

The defendant interposed a demurrer to the complaint, argument was had, and the demurrer was overruled, with leave to defendant to withdraw the same and answer on payment of costs. The plaintiff makes a motion for an extra allowance. The Code, in section 3253, provides for an extra allowance of not over five per cent, upon the sum recovered or claimed, or the value of the subject-matter involved, in a difficult and extraordinary case, where a defense has been interposed. It has been held that a demurrer is a defense within the meaning of the section, and that an additional allowance can be granted. New York El. R. R. Co. v. Harold, 30 Hun, 466; also see People v. Fitchburg, R. R. Co., 133 N. Y. 239; Moulton v. Beecher, 1 Abb. N. C. 245. It is true that only one allowance can be given, although the case may be tried several times. See Flynn v. Equitable Life Assm*. Society, 18 Hun, 213. An additional allowance, however, cannot be granted upon overruling or sustaining a demurrer, with leave to answer on payment of costs, but only when the final judgment is pronounced that unconditionally terminates the action and fixes absolutely the right of the successful party to tax his costs under the Code. See De Stuckle v. Tehuantepec R. Co., 30 Hun, 34, Davis, P. J. The demurrer in the case at bar, as we have seen, was overruled, with leave to answer, and I do not see how an additional allowance can be granted.

Motion denied, no costs.