#### MEYER RUBBER CO. v. LESTER SHOE CO. et al.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Appeal—Discretion op Trial Court—Allowance op Costs.

Where the affidavits on a motion for an extra allowance on the ground that the case was difficult and extraordinary (Code Civ. Proc. § 3253) are conflicting as to whether the case is of such a character, the action of the trial court in denying the motion will not, in the absence of an abuse of discretion, be disturbed on appeal.

Appeal from special term, Madison county.

Action by the Meyer Rubber Company against the Lester Shoe Company and another. From an order denying it an extra allowance, plaintiff appeals. In the order appealed from are found the following words: “Ordered, that the court hereby entertains said motion for additional allowance of costs herein, and hereby denies the same, with $10 costs of the motion.”

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

T. B. & L. M. Merchant, for appellant.

Carver, Deyo & Jenkins, for respondents.

HARDIN, P. J.

On the 23d day of April, 1895, we affirmed an order made by the same trial justice refusing an extra allowance. 33 N. Y. Supp. 888. In the course of the opinion delivered on that occasion in behalf of this court it was said, “The affidavits produced upon the motion tend to indicate that the case was difficult and extraordinary,” And it was further observed in the opinion that so many considerations are addressed to the discretion of the court upon such motions that the appellate court rarely interferes with the action of the trial judge; and in support of that position we cited Morrison v. Agate, 9 Wkly. Dig. 286, and Tolman v. Railroad Co., 31 Hun, 403. And we affirmed the order then before us, with the suggestion that the question could not be well solved except upon mature consideration of all the proceedings and affidavits relating to the questions which were before the trial judge, and we gave leave to the plaintiff to apply at special term for leave to renew its motion. It seems such an application has been made to the special term, and that leave was granted, and the motion for an extra allowance was heard *730and determined by the special term, adverse to the plaintiff. Additional papers were used upon that motion, and are now brought before us by the appeal from the order now under consideration. Upon a careful examination of the papers now found in the appeal book, a severe and resolute conflict is found. Skilled and experienced practitioners are in conflict as to whether the case was difficult and extraordinary. Affirmative affidavits that it was and affirmative affidavits that it was not difficult and extraordinary are found in the appeal book. The charge of the trial judge is also found in the appeal book, and the nature and character of the issues fully discussed, and it is confidently asserted on behalf of the appellant that the case was difficult and extraordinary, and it is resolutely denied on the part of the respondents that the case was both difficult and extraordinary. The trial judge was called upon to determine upon all the conflicting evidence before him, as well as upon his recollections of the trial as to whether this was a proper case within the rules that are applicable to motions for extra allowance or not. He has determined adversely, and in making that determination he has exercised his judgment and discretion. It may be observed that the case was somewhat extraordinary, but some doubt may be entertained as to whether it was difficult. Its determination at the circuit turned upon the application of simple rules relating to fraud cases, and we may well hesitate to declare that the trial judge has abused his discretion in refusing an allowance, as that refusal may have been put upon the ground that no difficult questions of law were involved in the case. As early as 29 N. Y. 423 (People v. New York Cent. R. Co.), it was decided that such applications were addressed to the sound discretion of the judge who was called upon to carry out the provisions of law upon the subject of allowances. The rule does not seem to have been changed by section 3253 of the Code of Civil Procedure. It was restated in Tolman v. Railroad Co., 31 Hun, 403. In Morrison v. Agate, 20 Hun, 25, it was said: “The court does not encourage appeals upon mere matters of discretion, and it will only interfere when the discretion seems to have been abused, or in a plain case of its unwise exercise.” And in Bryon v. Durrie, 6 Abb. N. C. 140, it was said that whether an action should be regarded as difficult and extraordinary “rests substantially in the judgment and discretion of the judge to whom the application is made, and the determination of the question usually involves so many considerations which are addressed to the discretion of the judge that the appellate court rarely interferes.” See, also, Insurance Co. v. Cranwell (Sup.) 10 N. Y. Supp. 404; Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252, 33 N. E. 1065. The papers disclosed that the plaintiff made a claim for a larger amount of damages by reason of the detention of the goods than it was found entitled to upon the trial. That circumstance may. have had some influence in the determination made by the trial judge in refusing an allowance. Burke v. Candee, 63 Barb. 552. Not being fully persuaded that the trial judge abused his discretion in denying the motion, we are not inclined to reverse the order made by him, after a full hearing of all the facts and circumstances disclosed in the present appeal book, and calling *731to mind all the circumstances that transpired before him at the time of the trial. The foregoing views lead us to sustain the order made at the special term.

Order affirmed, without costs to either party. All concur.