#### Abram F. Servin, Respondent, *v.*Sara S. Perry and Others, Respondents, Impleaded with John M. Servin and Jessie B. Servin, Appellants.

Second Department,

April 30, 1915.

Partition—costs — allowances to attorneys.

Under section 8258 of the Code of Civil Procedure, providing that in a partition suit an additional allowance may be made to the extent of five per centum of the value of the property partitioned, if an allowance *244of five per centum of the value of the property be made to the plaintiff, no allowance may be made to any defendant. If the plaintiff be allowed less than five per centum of the value of the property the defendants may be granted upon the value of their respective interests a per centum allowance which, added to the allowance made to the plaintiff, must not exceed five per centum of the value of the property partitioned.

But under section 8254 of the Code of Civil Procedure the allowances to the plaintiff or to the defendants shall in no event exceed $2,000, and in no event shall the total allowance on both sides exceed $4,000.

Appeal by the defendants, John M. Servin and another, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 23d day of December, 1914, upon the decision of the court after a trial at the Westchester Special Term.

The judgment is appealed from in so far as it grants extra allowances to the attorneys for certain of the parties herein.

*Philip A. Rorty,*for the appellants.

*Rosslyn M. Cox,*for the plaintiff, respondent.

Stapleton, J.:

The aggregate allowances made to the parties in this action for partition exceed five per centum of the value of the property partitioned. The court was powerless to make the excessive allowances.

In *Warren*v. *Warren*(203 N. Y. 250) the Court of Appeals expressly approved the rule governing the award of allowances in an action for partition announced in *Doremus*v. *Crosby*(66 Hun, 125), and followed in *Van Meter*v. *Kelly*(131 App. Div. 455). Speaking of that rule the Court of Appeals said: “Thus this rule has the support of authority, of long-continued usage and, we believe, of reason based upon controlling practical considerations. ” We venture to restate the rule:

Section 3253 of the Code of Civil Procedure provides that in a partition suit an additional allowance may be made to the extent of five per centum of the value of the property partitioned. If an allowance of five per centum of the value of the property partitioned be made to the plaintiff, no allowance may be made to any defendant. If the plaintiff be allowed less than five per centum of the value of the property partitioned, the *245defendants may be granted, upon the value of their respective interests, a per centum allowance which, added to the allowance made to the plaintiff, must not exceed five per centum of the value of the property partitioned.

The object of the section cited is to give the court discretion, in an action for the partition of real property, to grant an additional allowance to parties, and discretion as to the proper distribution thereof among parties if it elects to make a distribution. Upon the power there is, however, a primary limitation, universally applicable, namely, that the aggregate allowances to all parties must not exceed five per centum of the value of the property partitioned. There is a secondary limitation, imposed by section 3254 of the Code of Civil Procedure, operative only when the" value of the property involved calls for its application, namely, that in no event shall the allowance to the plaintiff exceed $2,000 and in no event shall the allowance to defendants exceed $2,000, and in no event shall the total allowances on both sides exceed $4,000. *( Weed*v. *Paine,*31 Hun, 10.)

The final judgment, in so far as appealed from, should be reversed, with costs to the appellants, and application for allowances remitted to the Special Term for disposition in accordance with this opinion.

Jenks, P. J., Thomas and Rich, JJ., concurred.

Final judgment, in so far as appealed from, .reversed, with costs to the appellants, and application for allowances remitted to the Special Term for disposition in accordance with opinion.