Cook v. The New York Floating Dry Dock Co.

which was deemed the proper and reasonable one under the circumstances. Seventeen months having gone by since the defendant may be assumed to have departed upon a voyage, the ordinary limit of which is four months, and nothing having been since heard of the vessel or of those who were in her, the presumption must be that she is lost, and that the defendant and those on board have perished. A greater length of time would strengthen the probability, but sufficient has elapsed to warrant the court in adopting and acting upon that presumption. The order appealed from is affirmed.

NOTE. This case was decided at general term, April 3d, 1858, and the 8th of April the following paragraph appeared in the New York Daily Tribune:

"A LOST CAPTAIN FOUND.-The New York correspondent of The Boston Journal stars that, some three years ago, the report reached New York that the ship Helena was lost. Her commander, Capt. Thompson, had with him his son, and left in New York his wife and several children. His cargo was a load of coolies; and it was believed that the cargo had risen and murdered the crew. The insurance office paid the policy, and an administrator was appointed for the estate. But Mrs. Thompson has had unwavering faith that her husband and son were alive, and would both return. This week a vessel arrived at this port, and states that they passed and hailed a vessel bound for China, which had on board Capt. Thompson and crew, of the Helena. The news has been hailed with joy, and public thanksgiving was given last Sabbath in the Mariners' Church."

Upon inquiry, however, it appeared that this was not the Capt. Thompson here referred to; nor has he or his vessel been heard from up to September, 1859..

JOSEPH J. COOK v. THE NEW YORK FLOATING DRY DOCK COMPANY.

The right of a plaintiff to an extra allowance in a difficult or extraordinary case, is perfect at the time when a verdict is rende ted in his favor, although the amount of such allowance may not be determined until afterwards.

In an action for the recovery of money, where the case was difficult, the plaintiff obtained a verdict in his favor at a time when the statute provided that the plaintiff should be entitled to an extra allowance.

Cook v. The New York Floating Dry Dock Co.

Held, that he was entitled thereto, although the order granting the allowance and fixing its amount was not made until after that provision of the statute had been repealed.

APPEAL by defendants from an order at special term granting an extra allowance. This action was tried before one of the judges of this court and a jury, in February, 1853, and a verdict rendered for the plaintiff for $6,000. A stay of proceedings was ordered and a case made, on which the defendants moved at special term for a new trial. In March, 1854, a new trial was ordered. From this decision the plaintiff appealed, and the court at general term, in October, 1857, reversed the order granting a new trial, and directed judgment to be entered on the verdict.(a)

The action being a difficult one and for the recovery of money, the plaintiff applied for and obtained an extra allowance, under section 308 of the Code of 1851. The order fixing the amount of this allowance was made in October, 1857, after the repeal of the section referred to, but which was in force at the time of the verdict.

From this order the defendants appealed.

Benedict, Burr and Benedict, for appellants.

Tomlinson, Walden and Brigham, for respondent.

HILTON, J.-The right of the plaintiff to costs, or to any allow. ance by way of indemnity for his expenses in prosecuting his action, must depend upon and be determined by the statutes in force in respect thereto at the time he became entitled to be thus remunerated.

By the Code, all previous statutes regulating costs or fees of attorneys in civil actions were abolished, and instead there was allowed to the prevailing party "certain sums by way of indemnity for his expenses in the action," and "which allowances"

(a) See report of the case, ante, p. 436.

Kamiah v. Salter.

were in that act "termed costs." Code, § 303. In an action of this nature, these "costs shall be allowed of course to the plaintiff upon a recovery." § 304, sub. 4.

In addition to the costs referred to and specified in detail in section 307, the plaintiff, in a difficult case like the present, wherein a trial has been had, was entited to an extra allowance, the amount of which was left to the discretion of the court. Code of 1851, 308.

All allowances are by the Code "termed costs," and the plaintiff's right to them accrues upon his "recovery," which, in this case, was at the time of rendering the verdict; and although the amount of the extra allowance was not at that time determined, yet the plaintiff's right to it then became fixed, and was given him by statute. Supervisors of Onondaga v. Briggs, 3 Denio, 173; Truscott v. King, 4 How. P. R. 173; Holmes v. St. John, 2 Code Rep. 46; Taylor v. Gardner, ibid. 47; Ellsworth v. Gooding, 8 How. P. R. 3; Huber v. Lockwood, 15 ibid. 74.

The time when a court is disposed to exercise a discretion ought not, upon any just principles, to deprive a party of a right thus fixed and acquired. Wilson v. Henderson, 15 How. Pr. R. 90; Crary v. Norwood, 5 Abbott P. R. 219.

Order appealed from affirmed.

HERMANN KAMLAH and EMIL SAUER v. BENJAMIN SALTER and others

In an action on a promissory note, an answer which denies simply that the defendants indorsed and delivered the note to the plaintiffs, without denying that they indorsed the note, or setting up any matter assailing the plaintiff's right to the possession thereof, is frivolous.

APPEAL from an order directing judgment on account of the frivolousness of the answer. The complaint, in this case, was upon a promissory note made by the defendants, payable to

Kamlah v. Salter.

their own order. The complaint averred that the defendants indorsed and delivered the note to the plaintiffs, and that they were the lawful owners and holders thereof. The answer was in these words:

"The defendant, &c., respectfully shows to this court,

"That he denies that the defendants in this action, by their firm name or otherwise, ever indorsed to the plaintiffs the promissory note mentioned and described in the said complaint.

"And he, further answering, denies that the defendants in this action ever delivered to the plaintiffs, or in any way transferred to them, the said promissory note.

"And he, further answering, says, that he has no knowledge nor information sufficient to form a belief, whether or not the said promissory note was ever delivered to the plaintiffs, or transferred to them, in any way by any one.

"And he, further answering, says, that he has no knowledge nor information sufficient to form a belief, whether or not the plaintiffs are the lawful owners or holders of the said note."

Upon motion, judgment was ordered on account of the friv olousness of the answer. The defendants appealed.

William H. Forman, for the appellants. I. In this court an appeal may be taken from an order for judgment in such a case as this, without waiting until judgment is perfected. Lee V. Ainslee, 4 Abbott Pr. R. 463. II. No answer is frivolous which denies a material allegation in the complaint. Davis v. Potter, 4 How. Pr. R. 155, per Woodruff, J.; Hecker v. Mitchell, 5 Abbott Pr. R. 455; Lord v. Cheeseborough, 4 Sandf. S. C. R. 696. III. This answer fully denies all the allegations relating to the title of the plaintiffs. Such an answer has been frequently held not frivolous. Lord v. Cheeseborough, 4 Sandf. S. C. R. 696; Snyder v. White, 6 How. Pr. R. 321; Temple v. Murray, 6 How. Pr. R. 329; Sherman v. Bushnell, 7 ibid. 171; Brown v. Ryckman, 12 ibid. 313; Wood v. Reynolds, 13 ibid. 112; Met. Bank v. Lord, 1 Abbott Pr. R. 185; Hecker v. Mitchell, 5 Abbott Pr R. 455.

The Waterbury Manufacturing Co. v. Krause.

J. N. Platt (Platt, Gerard & Buckley), for the respondents.

BRADY, J.-The plaintiffs allege that the defendants indorsed and delivered to them the note in suit. The defendants deny that they indorsed and delivered it to the plaintiffs. The note is payable to their own order. They do not deny that they indorsed the note, nor do they set up any matter assailing the plaintiffs' possession of it. When a note is payable to the order of the maker, and indorsed by him, in legal effect it is indorsed to any person who may hold it, and the denial of the mere act of indorsement or delivery to the holder is not the denial of a material averment. It may be assumed that the thing thus denied is not literally true, and yet the defendants would be liable. The mere possession of the note is sufficient to put the defendants to their defence, if any they have, and as they have not denied any of the facts by which possession could lawfully be acquired, they do not present any defence to the action.

Order of special term affirmed with costs.

THE WATERBURY MANUFACTURING COMPANY v. ISIDORE KRAUSE and Moritz Krause.

In an action brought against a firm of the name of I. K. & Brothers, M. K. was, by mistake, named as defendant instead of H. K. Although no summons or complaint was ever served upon him, he appeared and answered, denying that he was a partner in the firm. The plaintiffs then moved for leave to discontinue against him without costs, and to substitute the name of H. K. for that of M. K, whereever it occurred in the summons and complaint. On appeal from the order granting the application, Held,

I. That the order rested in the discretion of the court, and was not appealable.
II. That the circumstances of the case fully warranted the order as granted.

APPEAL from an order granting leave to the plaintiff to discontinue, without costs, as against one defendant, and to amend