The action is in the nature of specific performance against the heirs and next of kin of Wells Gooding,' deceased, of an oral agreement made between him and the plaintiff, that the survivor of them should take by devise and bequest the property of the other, subject only to the bequest by Wells of $10,000 to their sister Angeline. They duly made, pursuant to. the arrangement, their wills respectively, and deposited them with their attorney. After-wards the sister died, and thereafter Wells Gooding called for, received, and took away his will. He afterwards died, and the trial court properly found that he revoked his will by destroying it, and died intestate. The complaint was dismissed on the merits, and on defendants’ motion they were, by order of the court, given $500 additional allowance of costs. This appeal is taken from that
The determination of the case required the application of only well settled principles of law to the facts, and about the facts there was no dispute on the trial. There was no new question of construction or application of the statute of frauds, and none that did not come within the principle of repeated adjudications of the courts of this State. The questions, therefore, may arise: First. May the amount involved in the controversy characterize the case as difficult and extraordinary ? Second. In view of the magnitude of the case in that respect, and by reason of it, may the apprehension of the party and his attorney and counsel, and the unusual care and labor thus occasioned, as well as eminent legal skill, which, in consequence, is put into the case, enable the court to treat it as within the meaning of the statute and entitled to the designation of difficult and extraordinary; or, third, must the court be¡ governed by the quality of the questions actually involved and the quality of
The decisions of the court are somewhat numerous under that and a similar statute, but they, as a whole, give no very well defined interpretation and application of its provisions. The papers on which this appeal is heard, do not show what has been done in the case outside of its trial, but on the argument counsel for the defendants stated something of the care and labor done and the aid they had sought and obtained from eminent counsel, etc.
In Sickles v. Richardson (14 Hun, 110) the action was to have adjudged void bonds of a' railroad company of the nomiual value of $3,574,000. The court gave an allowance of $2,000. The only question presented on the appeal seems to have been whether there was any basis for computation of the allowance.
In Vilmar v. Schall (61 N. Y., 564) the question of basis of computation only was presented, and in Bockes v. Hathorn (17 Hun, 87) the allowance was said to have been made by consent of the attorneys.
In People v. A. and V. R. R. Co. (16 Abb., 465), the case involved large interests, and presented difficult questions of law. So far as relates to the questions of law presented, and the time occupied in the trial of this case, it does not seem to us to come within fáir meaning of the term difficult ■ and extraordinary. ' The judge who heard and decided the case held the court which made the order. He had means, not necessarily presented by the papers here, of acting advisedly in reference to all the circumstances which might bear upon the question. His discretion will not be deemed improperly exercised unless it clearly so appears. 1‡ has been said by the court that the determination of this question “involves so many considerations which are addressed to’the discretion of the judge, that the appellate court rarely interferes.” (Bryon v. Durrie, 8 N. Y. W. Dig., 57; Morrison v. Agate, 9 id., 286, which is approvingly repeated in Tolman v. S. B. and N. Y. R. R. Co., 31 Hun, 403.) The purpose of this provision of the statute is indemnity to the successful party for the expense that he, in such a ease, may incur in its proseeutiou or defense beyond those usually necessary. (People v. N. Y. C. R. R. Co., 29 N. Y., 426; Burke v. Candee, 63 Barb., 555.) The amount
It is difficult to define and declare any inflexible rule of application of this statute in view of the use of it which has been made . by the courts. If this order had been made by any other than the trial judge, we should, on the record and papers before us, be inclined to reverse the order. But while the discretion of a court has its limitations, the review of that discretion is so treated by the practice in such cases that orders of that class will not usually be reversed, unless it can be seen that there has been an abuse of that discretion. That we cannot say in this case. The counsel for the respondents said on the argument that the statement of the circumstances (which were referred to on the argument here) was made without affidavit before the court on the motibn at Special Term by the consent of the counsel for the plaintiff. The trial judge in making this order, it will be assumed, derived from the trial information which may have aided his judgment on the motion. In such case it seems not to be the rule that strict and sole reliance must be had on the papers on review of orders of this character. (Burke v. Candee, 63 Barb., 555 ; Tolman v. S. B. and N. Y. R. R. Co., 31 Hun, 403.)
In the latter case Hardin, J., says: “ There is nothing to show that the case was not both difficult and extraordinary. The usual presumption obtains that the order is correct unless the contrary appears. * * * The order may have been granted upon proofs more extensive even than we find in the appeal book.”
The order should be affirmed.
Order granting additional allowance affirmed,-without costs.