#### Jacob Strauss, Plaintiff, *v.*The Union Central Life Insurance Company, Defendant.

(Supreme Court, Kings Special Term for Trials,

January, 1901.)

Costs — Extra allowance refused where there was no basis — Construction of Code C. P., § 3253.

An extra allowance cannot he granted in an equitable action to reinstate a policy of life insurance and in which a defence has been interposed where there is nothing before the court, except the amount of the policy as that is not the “ value of the subject matter involved ”. The present or surrender value should be shown.

In construing section 3253 of the Code of Civil Procedure authorizing an extra allowance “ where a defence has been interposed ” the word “ defence ” has come to be deemed equivalent to the word “ answer ” or “ demurrer ”.

Motion for an extra allowance by the plaintiff.

H. B. Heylman for plaintiff.

Gilbert E. Roe for defendant.

Gaynor, J.:

This was a suit in equity to have a cancellation

of a life insurance policy by the defendant declared unlawful, and to reinstate the policy; and the plaintiff prevailed. The plaintiff moves for an extra allowance under section 3253 of the Code of Civil Procedure which permits the giving of such am allowance to either or any party “in a difficult and extraordinary case where a defence has been interposed in an action.” If this be followed no such allowance can be given except in an action where a “ defence ” has been interposed. A “ defence ” in the nomenclature of pleading is a plea of “ new matter ” in the answer which constitutes a defence to the alleged cause of action even though the allegations of the complaint be taken as true. It can only be of new matter, *i. e.,*matter which cannot he given in evidence) under a denial, such as a general release, payment, another action pending, that the contract sued upon is fraudulent, that the slander or libel sued for is true, and so on; *i. e.,*matter in respect of which the burden of proof is on the defendant (Code Civ. Pro. *572§ 500; Cruikshank v. Press Pub. Co., 32 Misc. Rep. 152 and cases there cited). Butt the courts do not seem to have interpreted the word “ defence ” in section 3253 in the scientific and accurate sense which it has and always has had in pleading. They interpret it, strangely enough, to mean “ answer ”, or even “ demurrer ”, which it does not mean and never meant. They do not even interpret it to mean the contest or opposition which a defendant makes on a trial, and which laymen call a defence, for an allowance is habitually allowed, in the first and second judicial departments, at least, where the complaint is dismissed for the plaintiff’s default, or a judgment is taken against the defendant on his default, when the cause is reached for trial. How such a confusion of words and ideas arose in the profession it is now useless to inquire. If the answer here were to be considered as not pleading a “defence”, hut only denials, or a general denial, (although it purports to plead so-called “defences”), nevertheless under what has come in some way to be the settled practice, the court may grant the plaintiff an extra allowance of not to exceed five per cent, on the “ value of the subject matter involved”. But there is nothing before me to show the value of this policy, which is the subject matter involved. Such value is not the amount of the policy. I suppose it has a present or surrender value, but I am referred to no law or basis oh which to fix it.

The motion! is denied.