59 N.Y.S. 163 | N.Y. App. Div. | 1899
The learned judge below, satisfied that upon the merits the motion should have been granted, denied it for want of power; and, upon the facts presented, the sole question on this appeal is whether his construction of section 3253 of the Code of Civil Procedure, as amended in. 1898 (Chap. 61, Laws of 1898), was right.
This was an action in partition, and the complaint, in specifying the rights and interests of the parties in the property, alleged, among other things,.“that the defendant Wilson L. Defendorf or
Section 3253 of the Code of Civil Procedure, as amended in 1898, provides for allowances as follows :
“ 1. In an action to foreclose a mortgage or for the partition of real property a sum not exceeding * * * the aggregate sum of two hundred dollars.
“2. In any action * * * where a defense has been interposed, a sum not exceeding five per centum upon the sum recovered or claimed or the value of the subject-matter involved.”
It will thus be.seen that a sum greater than $200 cannot be granted in a partition suit unless a defense has been interposed; and the only question here is whether, by the answer of one defendant, which disputes the title of another defendant, there is presented c: a defense,” within the meaning of the Code of Civil Procedure, making this an exceptional case where more than $200 can be allowed. We think that the learned judge below correctly disposed of this question in saying “ all of the defendants interposed answers uniting in the prayer of the complaint, so that it cannot fairly be said that any defense was interposed in the action. One of the defendants made allegations that a co-defendant was indebted to her, but the issue thus raised tended in no way to defeat, in whole or in part, the relief sought by the plaintiff, and cannot be deemed to be a defense.”
The amendment of 1898 went into effect September 1, 1898, after this action was commenced, but there is no force in the suggestion that for that reason the amendment is not controlling. Parties have no vested rights in costs or allowances — which are always within the power of the Legislature to modify or change — and in every case the amount is to be determined by the law as it stands when the right to the costs and allowances accrues. Here the property
The order appealed from must, therefore, be affirmed, and, as both parties appeal, it should be without costs.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Order affirmed, without costs.