In Burke v. Candee, 63 Barb. 552, it was held, viz.: “ An additional allowance is made by way of an indemnity to the party succeeding in the litigation.” That case was referred! to with approval in Gooding v. Brown, 21 Wkly. Dig. 47; Tolman v. Railroad Co., 31 Hun, 403 ; and Delcomyn v. Chamberlain, 48 How. Pr. 413. Section 3253 of the Code provides that in an action which is “ difficult and extraordinary,” where a defense has been interposed, the court may, in its discretion-, award to any party “a sum not exceeding five per centum upon the sum recovered, or claimed, or the value of the subject matter involved.” The affidavits produced upon the motion tend to indicate that the case was difficult and extraordinary. In Morrison v. Agate, 9 Wkly. Dig. 286, it was said that the determination of the question as to whether an action should be regarded as' difficult and extraordinary, within the meaning of the Code, involves so many considerations which are addressed to the discretion of the judge that the appellate court rarely interferes. The doctrine of that case was approved by this court in Tolman v. Railroad Co., 31 Hun, 403. In the latter case an order had been made for an extra allowance, and the court observed: “To reverse the order, we should be obliged to say that the discretion of the trial judge was improperly exercised.” In the case in hand we are not inclined to say that the discretion of the special term was improperly exercised, as the appeal book does not contain “ all the proceedings had and taken in this action.” It may.be that the order in question was based upon a knowledge possessed by the court “ of all the proceedings had and taken in this action,” and that such knowledge is not revealed fully to us by the appeal book. This feature of the case is rendered probable by the circumstance that the judge who presided at the special term presided at the circuit where the issues of fact were tried, and the trial thereof was presided over by him during the whole of a week of the circuit. We are not prepared to attribute to the judge the views imputed to him found *637in the affidavits in the appeal book. The circumstances of the trial may have induced him to insert in the order the clause, “ In case motion for a new trial is made or appeal taken by defendants, then and in that case this motion may be renewed.” Inasmuch as no motion for a new trial ‘has been made or appeal taken by the defendants, the privilege given by the clause just quoted is unavailing to the plaintiff. Some force and effect may have been given to the affidavits read by the defendants relating to the intimations theretofore made by the court in respect to the nature and character of the action, which affidavits the plaintiff had no opportunity to answer at the time the motion was heard. Possibly, upon other and further affidavits, the plaintiff may be able to obtain leave to renew the motion, and, having done so, to secure a further determination by the special term of the question whether, under all the circumstances surrounding the question as to the propriety of an extra allowance, the discretion of the court should be exercised in favor of the plaintiff.
Eule 44 of the general rules of practice of the supreme court provides that “ applications for an additional allowance can only be made to the court before which the trial is had.” We think, upon the papers before us, we ought not to pass conclusively upon the question whether the plaintiff is entitled to an extra allowance, as that question cannot well be solved, except upon a mature consideration of “ all the proceedings had and taken ” in the action, and upon all the affidavits presented by either party relating thereto. We therefore affirm the order, without costs, and without prejudice to the plaintiff’s application at special term for leave to renew its motion.
Order affirmed, without costs, and without prejudice to an application by the plaintiff for leave to renew its motion for an extra allowance.
All concur.