I am referred to the cases of Dykman agt. McDonald (5'How. Pr. R. 121) and Niver agt. Rossman [id. 153) as authority for granting this motion. The decisions of these cases, it seems to me, could only have been warranted by the passage of the law as it was originally introduced; then the court in its discretion might have allowed a per centage upon the amount of the recovery in any case where a trial was had. The amendment to this proposition adopted by the legislature, very clearly shows that it was their intention to discriminate between litigated cases and limit the allowance to those only that are comparatively difficult or extraordinary and so the statute has been construed since the decision of the cases referred to (Fox agt. Gould, 5 How. Pr. R. 278;.Dexter agt. Gardner, id. 440), and even this discretion as is intimated in Hall agt. Prentice, (3 How. Pr. R. 128); Sachet agt. .Ball, (4 id. 71,) and Gould agt. Chapin, is of doubtful expediency, no uniform rule can be arrived at. Justices of the same district have in similar cases, differed not only upon the question of allowance, but upon its amount, and in different districts different opinions exist, in relation to what are difficult or extraordinary cases, and the disparity in the amount allowed, alone renders the administration of justice in this respect inharmonious.
■ There is no pretence that in the case under consideration any difficult question arose upon (he trial, or that there was any thing *455to distinguish it from an ordinary litigation, except the time consumed in its trial. If the controversy had been limited to' three items of the plaintiff’s demand, constituting. $929‘25 of the amount embraced in the report, the trial would not have assumed the character of being extraordinary even for its length. It was not the intention of the law, giving to the court a discretion to allow a per centage by way of indemnity against the expenses of an extraordinary trial, that it should be given upon a large and easily established claim, where the trial has been rendered extraordinary solely by the time consumed in litigating the right to recover smaller ones in no way connected with or arising out of it. If the trial was of extraordinary length it was made so by causes for which the defendant was not alone responsible, it was by common consent dilatory, and for that reason consumed much more time than was necessary. Several claims put forth by the plaintiff were rejected by the referee; the time wasted in litigating these unfounded claims also added to the length of the trial. For the successful resistance of them the law affords the defendant no indemnity for the expenses incident to their litigation. If, therefore, the time actually devoted to the trial of the cause would entitle it to be regarded as an extraordinary trial, the plaintiff contributed essentially to make it so, by an effort to establish unjust demands against the defendant, and hence ought not to be allowed a per centage upon the amount recovered. The motion must be denied.