The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-08-01

pay costs Incurred subsequent 10 the tender. L.
Does this provision apply to foreclosure suit a.
to preclude the plaLtH II be refuses to accept the
amount. hosn the benefit Of an extra allowance, In
the present case the tender Was made the day b.
fore the plaintiff was entitled TO Judgment when near.
~ all the trouble and responsibility OF prosecuting the
ton bad been incurred. The defenr ant maintains
that having made the tender the plaintiff is not enti
tedtojudement; and as the Code S30s I'd psragraph)
In foreclosure snta provides for an additional allow
ance only where judgment has been obtained. the
court can grant no such allowance in this case and
secone they cannot grant Il, even II the plaintiff
is entitled to judgment, aa this would be tantau,nunt
TO allowing costa Incurred subseq nent to tie ender
Tbs being Q technical objection il is insisted that
it should be technically scanned and that the adyan
tsge which 1t claims should be yielded only there
make tender subsequent to the Commencement Of
the action. is applicable to this case The statute
expressly refers ,tons at Law, an il was never
pretended, before the Code, that Il had any app ..
menced In chaneery; and confess chat see no rea.
son why we should stretch tho statute in the all
scnce OF any express provision. under tue dubious
supposition that TO do 80 would be mpliedy consis
tent with the spirit and tenor Of the Cooc. Il is
moreover possible that the Legislature Intentional
" omitted any alteration on this subject as Ia fore
closure cults the interests OF the parties are often
80 difficult % to require the direct interposition
Of inc court even when the owner Of the equity
Of redemption is prepared to pay the amount doe.
Besides, even If the statute may be deened to ap.
Fly 10 foreclosure SUITS the plaintiffs not prohibited
from prosecuting his action to judgment after the
tender has been made. II only denies him costs In
cuIreo subsequent TO the TENDER and f en- titled to
jus gment, an additional allowance NAV be given
unless such allowance ia tautamount--within
the meaning OF tho statuto-to costs in
cured snbte4uent to the tender" Is the addi-
tional costs In the nature of costs incurred
subsequent to the tender? The a,io vance,
DOUBLE as, cannot be made, except when the judg-
mtnt has been obtained. But this refers oniv to
the CONDITION or circumstances under which it shall
be made; II does not intimate that the services for
which II is made ae rende ed after the judgment.
II does not follow, therefore that this additional
allowance Is to be deemed equivalent to costs incur
red subsequent to the tender. The allowance is
mace for services commencing from the institution
Of tie action, which are generally more important
and oDerous In the first than in the subsequent
stages. It Is In fact made for services perforuei
throughout the prosecution Of the action rather
than for services rendered at any particular stage Of
it, and certainly not exclusively for services
rendered after the judgment has been obtained
The allowance, therefore, is not asked for costs
incurred subsequent to the TENDER" but having OBJ
tanned hie judgment, to which, Notwithstanding The
tends r, consider him entitled, the plaintiff asks
for an Allowance adj itona to his ordinary costs to
compensate him for the expense and trouble which
be has incurred from the commencement OF the
act IN throughout all the tages OF it, and "a 10 all
cases of this nature involving az they do con sdera-
BILE labor and responsibility, and requiring no small
degree OF legal skill. Geem an extra allowance
proper, / can rec no reason why it should not be
grantee In the present case Let the plaintiff have
$50, as such allowance.