New York County NyArchives Court.....Kingsland, William Vs. The Mayor 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 1, 2008, 11:55 pm

Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

WILLIAM M. KINGSLAND, as Sole Surviving Trustee, etc., and Others, Plaintiffs, 
v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and Others, 
Defendants.

Submission upon an agreed statement of facts—an additional allowance may be 
granted under section 3253 of the Code of Civil Procedure.

In a controversy, submitted upon an agreed statement of facts, under section of 
the Code of Civil Procedure, the court has power to grant an additional 
allowance, under section 3253 of the Code of Civil Procedure, where it appears 
that the case is difficult and extraordinary.

Neilson v. Mutual Insurance Company (3 Duer, 683); New York Elevated Railroad 
Company v. Harold (30 Hun, 466) followed.

Motion for an additional allowance, under section 3253 of the Code of Civil 
Procedure, in a controversy submitted upon an agreed statement of facts under 
section 1279 of the Code of Civil Procedure.

MacFarland, Boardman & Platt, for the motion.
 
Henry R. Beekmam, opposed. 

Per Curiam:

This is a controversy submitted upon an agreed statement of facts, under section 
1279 of the Code of Civil Procedure. The plaintiff has prevailed, and now moves 
for an additional allowance, and the question arises whether the court has power 
to make such an allowance in a case of this kind; that the case is difficult and 
extraordinary within the meaning of the statute, hardly admits of dispute. 

To authorize the court to grant an additional allowance, under section 3253 of 
the Code, on the ground that the case is difficult and extraordinary, it must be 
made to appear, first, that the litigation is an action; and, secondly, that a 
defense has been interposed. If these two facts are established, there would 
seem to be no doubt of the power to award a further sum in addition to costs to 
the prevailing party. It is clear that a controversy submitted without process, 
as provided in the Code, is an action. Section 1280 provides that the case, 
submission and affidavit must be filed in the office of the clerk of the court, 
to which the submission is made; and goes on to declare, in express terms, that 
the filing is a presentation of the submission, and "thenceforth the controversy 
becomes an action, and each provision of law relating to a proceeding in an 
action applies," except as otherwise prescribed in section 1281. The latter 
section prescribes that "in such an action" the costs are always in the 
discretion of the court, but costs cannot be taxed for any proceedings before 
notice of trial, and, furthermore, that "the action must be tried by the court 
upon the case alone." Section 1281 contains nothing else relevant to the 
questions arising upon this motion. We think it is equally plain that, in a 
submitted controversy of this kind, a defense is interposed within the meaning 
of section 3253 of the Code of Civil Procedure. The position of the defendant is 
the same as that of a defendant who demurs to the complaint in an ordinary 
action. He admits the facts as alleged, but denies that they entitle the 
plaintiff to any relief as against him. The hearing before the General Term is 
practically the trial of an issue of law. (Neilson v. Mutual Ins. Co., 3 Duer, 
683.) It is defined by the Code to be a trial. In an ordinary action an extra 
allowance may be granted to a defendant who has demurred. (N. Y. Elevated R. R. 
Co. v. Harold, 30 Hun, 466.) The demurrer is deemed to be a defense under 
section 3253. A defendant in an action growing out of a submission to the 
General Term upon agreed facts should be regarded as having interposed a 
demurrer; and hence the court possesses the power to award him an additional 
allowance by way of costs, if the case is difficult and extraordinary. 

In our opinion the motion should be granted.

Present Van Brunt, P. J.; Daniels and Bartlett, J J.

Motion granted.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/newyork/court/kingslan711gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 4.7 Kb