I also concur for the reason stated by Judge Herrick. In my opinion, the stipulation that the prevailing party should recover costs should be construed to mean not only the ordinary taxable costs under section 3251 of the Civil Code, but also an extra allowance under section 3253, if the case should prove difficult, and the proper court, in its discretion, should there-after hold it proper to make such allowance. I am unable to see why the stipulation relieving the court from the exercise of discretion as to the ordinary taxable costs should prevent the exercise of that discretion as to an allowance. But the general term of the first district, in the case of Fish v. Coster, have passed upon this question, and arrived at a different conclusion. This case was affirmed by the court of appeals. 92 N. Y. 627. The defendant, however, in whose favor the order denying the extra allowance was made, was appellant, and I presume the question of the power of the general term to grant an allowance was not passed upon. The question involved, therefore, remains undecided in that court. I think it proper to follow the holding of the general term of the first district. The order should state that the denial is upon the ground that, the parties having stipulated as to costs, this court is not authorized to grant an allowance. The defendant will thus be authorized to submit the question involved to the court of appeals.