Saffron v. Saffron , 11 N.Y. St. Rep. 471 ( 1887 )

Angle, J.

—The action is partition, and upon application for judgment interlocutory directing a sale, the plaintiff’s attorney asks for an additional allowance of costs, and the question arises whether such motion should be entertained now or whether it should be postponed till application for final judgment.

Where an actual partition of the lands is ordered, the plaintiff’s right to costs arises upon final judgment. Code Civ. Pro., § 3228; Davis v. Davis, 3 N. Y. State Rep., 163.

But there are provisions in the Code applicable only to cases where a sale is ordered which, while they make a material difference in regard to costs from a case where the lands are actually partitioned do not, I think, make any difference in regard to the time when an application for an additional allowance should be heard.

Section 1579 of the Code provides as to costs, etc., when final judgment confirming a sale is rendered, the costs of each party to the action and tne expenses of the sale, etc., must be deducted from the proceeds of the sale and each party’s costs must be paid to his attorney. It also makes other provisions giving to the court discretion as to certain costs and expenses in the action, which to me quite clearly indicate an intention that matters of costs are to be determined at the time of final iudgment. Besides the services of the attorney are always required in the proceedings intermediate the interlocutory and the final judgment, and until such services are rendered the matter of additional allowance cannot be so well determined.

Interlocutory judgment on confirmation of report of referee granted. Application for additional allowance to go over till final judgment.