Vietor v. Halstead
New York Supreme Court
Appeal from special term, New York county. Action by George F. Vietor and another against William M. Halstead and another. Plaintiffs appeal from a judgment awarding an additional allowance'to defendants, under Code Civil Proc.
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Appeal from special term, New York county. Action by George F. Vietor and another against William M. Halstead and another. Plaintiffs appeal from a judgment awarding an additional allowance'to defendants, under Code Civil Proc. H.-Y. § 3258, which provides» that, in a difficult and extraordinary case, when a defense has been interposed, the court may, in its discretion, award to any party afurther sum, not exceeding 5.per centum upon the sum recovered or claimed or the subject-matter involved.
1Opinion of the CourtLawrence, J.
We are of the opinion that a demurrer is a “defense,” within the meaning of section 3253 of the Code of Civil Procedure, and that it is within the power of the court to grant an allowance. If an authority is needed for this proposition, beyond the sections of the Code relating to demurrers, it will be found in the case of Kingsland v. Mayor, etc., 52 Hun, 99.1 In that case the court held that, in a controversy submitted upon an agreed state of facts, under section 1279 of the Code of Civil Procedure, the court had power to grant an allowance, and the court said: “The position of the defendant…
2Cases cited1 opinion
- Kingsland v. MayorNew York Supreme Court · 1889
3Cited by1 opinion
- Winne v. FanningNew York Supreme Court · 1897