Opinion
Argued March 31, 1931
Decided May 12, 1931
Appeal from the Supreme Court, Appellate Division, Second Department.
Joseph A. McCabe and Earl Hawley for appellant.
Abraham A. Silberberg for respondent.
In two actions by plaintiff to foreclose mortgages, defendant Wener Holding Co., Inc., interposed defenses but defaulted on the trial. After judgments, including awards of additional allowance for $961.75 in one action and $2,000 in the other, had been entered in favor of plaintiff, defendant moved at Special Term to vacate and set aside the judgments in so far as they award additional allowances. The motions were denied but the orders denying them were reversed on the law.
The Special Term was empowered in its discretion, pursuant to section 1513, subdivision 2, Civil Practice Act, to award additional allowances in these sums. An action to foreclose a mortgage is one specified in this section, defenses were interposed and the sums awarded do not exceed five per centum of the value of the subject-matter involved. When a defense has been interposed in this kind of action, subdivision 2 does not require that the case be difficult and extraordinary. It is only in cases where no defense has been interposed that the provisions of subdivision 1 are applicable. No error of law, therefore, was committed at Special Term.
The orders of the Appellate Division should be reversed and those of the Special Term affirmed, with costs in this court and in the Appellate Division.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Ordered accordingly.