113 N.Y.S. 897 | N.Y. Sup. Ct. | 1908
As I have had occasion to rule in Hafner v. Hafner, 34 Misc. Rep. 99, allowances to defendants, in addition to costs, under section 3253 of the Code of Civil Procedure, cannot be made in an action for the construction of a will. This situation results from the framing of sections 3252 and 3253, which are similar to the corresponding provisions of sections 308 and 309 of the Code of Civil Procedure, as construed in Downing v. Marshall, 37 N. Y. 380. Such slight changes of phraseology as have occurred in these provisions do not affect the force of Downing v. Marshall as an authority (Matter of Holden, 126 N. Y. 589), and the case of Allen v. Stevens, 161 N. Y. 123, cannot well be viewed as supporting a different rule.. True, in that case the court assumed that there was power in the court below to grant allowances to the defendants; but the question was not presented for discussion, since it appears that each-party who appealed from the allowance to the other had an allowance to protect for his own part, and the quantum only was the subject of the appeal, not the power to make an allowance, which power the parties evidently conceded in their common interest. The guardian ad litem for one of the defendants has rendered services of a substantial character, and an allowance for his services should certainly be awarded him if the court had the power to do so. If additional allowances could be made to defendants in the action under section 3253 of the Code of Civil Procedure, it would appear that the infant defendant could properly be granted an allowance in addition to costs, like any other defendant represented by counsel in the litigation. Such an allowance, when awarded, would be of the character of the “ taxed
■Ordered accordingly. .