#### FRANCIS D. MOULTON, Appellant, *v.*HENRY W. BEECHER, Respondent.

*Additional allowance*— *if the cause 7ms even' been at issue, though there be no issue at the time of its discontinuance*— an *allowance may be made.*

Appeal from an order of the Special Term, granting an additional allowance.

This action was brought for malicious prosecution. Tbe defendant demurred to tbe complaint. Tbe demurrer was sustained at Special Term. On appeal to tbe General Term tbe order sustaining tbe demurrer was reversed, and leave was given to tbe defendant to answer. Tbe defendant thereupon answered tbe complaint, and upon tbe issue thus joined moved, at Special Term in Kings county, for an order changing tbe place of trial, which was laid in tbe complaint in tbe county of Kings. While that motion was pending, and before its decision, tbe plaintiff amended bis complaint by changing tbe place of trial stated therein, from Kings county to tbe city and county of New York. Tbe Special Term of Kings county thereupon ordered tbe motion to change tbe place of trial to be beard in tbe city and county of New York, where tbe same was afterwards beard, and an order was subsequently made changing tbe place of trial to tbe county of Delaware. Tbe plaintiff thereupon obtained an *ex ftwte*order at General Term in Kings county, ordering that tbe action be discontinued on payment by plaintiff of defendant’s costs to be taxed, and served a copy thereof-with notice requesting tbe defendant’s attorney to procure tbe costs therein to be taxed, and offering to pay tbe taxable costs pursuant to tbe order of discontinuance. After tbe service of this order and *193notice, defendant served an amended answer, which, was returned by the plaintiff’s attorney on the ground that the action had been discontinued. The defendant gave notice of this motion for an additional allowance of costs, and served a bill of costs with notice of taxation of the same by the clerk. The amount of this bill of costs was immediately offered by the plaintiff’s attorney to the defendant’s attorney, who refused to. receive the same except without prejudice to the pending motion for an extra allowance. The plaintiff’s attorney thereupon tendered the same unconditionally, and left the amount on the table in the office of defendant’s attorney. The motion for an additional allowance was heard at Special' Term, and the sum of $250 was granted.

The com-t at General Term said: “"We concur with the court below that there had not been such a final adjustment of costs in the case as precluded the motion for an additional allowance, and we are also of opinion that the case is one in which an additional allowance should be granted. The case had been at issue twice, once by demurrer, and that issue had been displaced by the decision of the General Term and the service of the answer allowed by such decision. The service of -the answer made an issue of fact, and upon that issue the motion to change the |>lace of trial was made and granted. If that issue was destroyed by the service of a complaint amended merely as to the place of trial, nevertheless the fact that the issue had existed in the case, and had been made the basis ■ by the court of the order changing the place of trial, is not taken out of the case. It is not necessary to decide whether the service of the answer to the amended complaint before the notice of this motion, and before the payment of costs under the order of discontinuance, was a joinder of issue in the case. There had already been issues, we think, sufficient to be the basis of the motion for an extra allowance under section 309 of the Code. The language of that section is as follows: £ In difficult or extraordinary cases, where a defense has been interposed, * * * the com-t may also, in its discretion, make a farther allowance to any party not exceeding five per cent upon the amount of the recovery or claim or subject-matter involved.’

In this case we think a defense has been interposed within the meaning of the Code, and we think, also, that the case is shown by *194the papers on this appeal to have been a difficult and extraordinary one.”

*Roger A. Pryor,*for the appellant. *Thomas G. Shearman,*for the respondent.

Opinion by

Davis, P. J.;

Daniels, J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.