Shopiro v. Fairmount Building Co.

Order of May 7, 1938, so far as appealed from, affirmed, with ten dollars costs and disbursements. Memorandum: We read the order of May 7, 1938, as being an order made at the foot of the judgment. An appeal from such an order does not permit a review of the judgment itself. Assuming that the judgment of March 28, 1938, is before us for review, we hold that the court had discretionary power to grant the additional allowance. A defense having been 1036 interposed in this action to foreclose mortgages, the court had discretionary power to grant an additional allowance of $2,000, notwithstanding that the case was neither difficult nor extraordinary. (Poughkeepsie Savings Bank v. Herron, 256 N. Y. 339.) The taxable costs allowed by law which section 1077-e of the Civil Practice Act requires to be paid to stay the sale under the judgment of foreclosure and sale, include the additional allowance granted by the court. (Wing v. De La Rionda, 126 N. Y. 680; London v. Van Etten, 57 Hun, 122; Safety Steam Generator Co. v. Dickson Mfg. Co., 61 id. 335.) All concur, Lewis, J., not voting. (The portion of the judgment appealed from grants plaintiff taxable costs, disbursements and allowance in an action to foreclose a mortgage.) Present ■ — • Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.