#### Genet *v.*Delaware & H. C. Co.

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

Costs—Extra Allowance—Difficult Cases.

Where, on demurrer, a court dismisses a complaint for want of jurisdiction, no costs can be allowed defendant under Code Civil Proc. N. Y. § -3253, which provides that in a difficult and extraordinary case the court may award, as additional costs, a sum not exceeding 5 per cent, of the amount involved. Before the court can award such costs, it must determine that the case itself is difficult and extraordinary, and that question cannot be considered where the court has no jurisdiction.

Appeal from special term, New York county.

Action by Augusta C. Genet against the Delaware *&*Hudson Canal Company for alleged .negligent injuries to property in Pennsylvania. On defendant’s demurrer, the complaint was dismissed for lack of jurisdiction. See *8*N. Y. Supp. 822. Defendant then moved for ah extra allowance of costs on the ground that the ease was difficult and extraordinary. From an order awarding defendant $500 additional costs plaintiff appeals. For other litigation between the parties, see 4 N. Y. Supp. 638, 880; 6 N. Y. Supp. 959; 21 N. E. Rep. 390.

Code Civil Proc. N. Y. § 3253, provides: “In a difficult and extraordinary case, where a defense has been interposed in any action, the court may also,, in its discretion, award to any party [as additional costs] * * * a sum. not exceeding 5 per centum upon the sum recovered or claimed, or the value-of the subject-matter involved.”

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

*George G. Genet,*for appellant. *Matthews*<6 *Smith,*for respondent.

Daniels, J.

This action was determined by the decision of a demurrer to the plaintiff’s complaint, in which it was held that this court had no jurisdiction over the cause of action set forth. And the allowance was directed for the reason that the case was difficult and extraordinary”. But the court has not considered or decided the case. It has not been either heard or investigated by the court, and it cannot, therefore, be held to be either difficult or extraordinary. Before an additional allowance can be made under the authority of section 3253 of the Code of Civil Procedure, it must be ascertained that the case itself is of that description. It must be determined in some form to be difficult and extraordinary. But in a case over which the court has no jurisdiction that subject cannot regularly be considered at all, and no decision can be made upon it. The sole province of the court is to determine the single point of jurisdiction, and when that has been done adversely to the action, the merits are beyond its reach, and outside of its consideration. The right to recover the costs of the defense' made by the demurrer depends upon section 3229 of the Code, which, in general language, provides for the recovery' of costs, of course, by the defendant, when the plaintiff shall not be entitled to costs. They result in an action at law, as this action was directly from the final judgment recovered by the defendant. In this respect they are-*468plainly distinguishable from the additional allowance, which can only be made by further action taken by the court, resulting in the conclusion that the case itself is difficult and extraordinary; and, as that could not be reached for want of jurisdiction over the controversy itself, the order should be reversed and the motion denied. All concur.