9. Fox, Administrator, agt. Gould. evidence, which may be needed to obtain an order of injunction, should be presented by affidavit. The order is denied, but the plaintiff is at liberty to make another application upon papers prepared as here indicated. 5 How. 278-APPLIED, 56 How. 172; s. c. 8 Daly SUPREME COURT. Fox, Adm'r of the estate of Fox, deceased, agt. GOULD. In awarding an extra allowance of costs under § 308 of the Code, the court should discriminate in litigated actions, between "difficult and extraordinary" as contradistinguished from "common and ordinary." Each case must be determined according to its peculiar circumstances, no general rule can be adopted. (The opinion in Dyckman agt. McDonald, ante page 121, not concurred in). Jefferson Special Term, January 1851. This was an action. commenced to recover $1000, money alleged to have belonged to Isabel Fox, deceased, wife of the plaintiff, in her life time, and to have been her separate property, held by the defendant as her trustee. The cause was referred at the last December circuit upon the motion of the plaintiff, without previous notice, the defendant appearing prepared for trial. The defendant noticed the cause for trial before the referee, attended prepared, but the referee failed to appear. The parties then stipulated to try, on a given day, at which time the plaintiff proved his case as stated in the complaint. The defendant then proved, that before the death of said Isabel, and while she lived separate from her husband, she made a transfer to the defendant of her whole separate property in consideration of her previous indebtedness to him. The defendant also proved a set off, to a large amount against the said Isabel, whereupon the plaintiff's attorney, after the trial had been in progress nearly two days, served a notice of the discontinuance of the action. The defendant now moves for an extra allowance of costs, provided for by section 308 of the Code, on the ground that the action fell within the class of cases difficult or extraordinary." JOHN CLARKE, for Defendant. JAMES F. STARBUCK, for Plaintiff. Fox, Administrator, agt. Gould. HUBBARD, Justice.-The term "difficult or extraordinary," seems to be used in contradistinction to common or ordinary," hence the court is required to discriminate, in litigated actions, in awarding an extra allowance of costs. My view of section 308 of the Code, does not correspond with the decision in the case of Dyckman vs. McDonald (5 Howard, 121). It seems to me that the legislature could not have intended to empower the court to allow a percentage in all litigated trials; such may have been the intention of the commissioners, but that intent was frustrated by the legislature inserting in the section reported, the words "difficult or extraordinary." The section as it came from the hands of the commissioners, extended a discretionary allowance to all cases of trial, regardless of the nature or character of the action; but the section as passed into a law, plainly, imposes the duty of discrimination, and the per centage to be allowed only in cases distinguished from the mass of actions, as "difficult or extraordinary." Each case must be determined according to its own peculiar circumstances, no general rule can be established, and diversity of opinion must prevail, because each judge must be guided by his individual experience, as to what actions and trials are "difficult or extraordinary," within the statute. All litigated trials can not be considered “ difficult,” within the meaning of the section, because such a construction would completely nullify the words "difficult or extraordinary," as used, and contravene the plain intent of the legislature, as before observed. Effect can be given to these words, in connection and consistent with the rest of the section, and can not, therefore, be disregarded. It seems to me that the word "difficult" should be applied to questions of law involved in the action. "Extraordinary" may apply to any other feature or circumstance, distinguishing the base from ordinary litigations. The case before me does not fall within the principle of section 308. The legal questions were not difficult, nor does it appear from the affidavits upon which the motion is made, that the circumstances connected with the trial were "extraordinary." It was an ordinary case of reference. There was nothing unusual Fox, Administrator, agt. Gould. in the manner of the reference, or the trial before the referee. The time consumed was not extraordinary. It was conceded upon the argument that the suit had been fairly prosecuted, and when time alone, is relied upon, it should clearly appear that more than ordinary was necessarily consumed, for there is another portion of section 308 which provides for cases where the trial has been unreasonably protracted by the design of the party or attorney. In a doubtful case, the extra costs should be withheld. In all cases where the trial has been by reference, the certificate of the referee should be procured. The affidavits of the parties are generally so conflicting, that such certificate would materially aid in arriving at a just conclusion, in motions like this. The motion must be denied. Hollenbeck agt. Van Valkenburgh and others. SUPREME COURT. HOLLENBECK agt. Van Valkenburgh and others. The general rule adopted by the Code of Procedure makes all persons competent witnesses, notwithstanding their interest in the event of the action. The exceptions to this rule are, a party to the action, any person for whose immediate benefit it is prosecuted or defended, and an assignee of a thing in action, assigned for the purpose of making him a witness. These may still be disqualified by reason of interest. This exception extends to an adverse party called as a witness, as well as to a party offered as a witness in his own behalf. A party, incompetent to testify, may still give evidence of the loss of an instrument, as a foundation for the introduction of parol proof of its contents; and in so doing, may speak of facts and circumstances sufficient to identify the instrument, or describe it, so as to show whether the paper lost was the one in question. On the execution of a will, where the witnesses are requested, in the presence of the testator, by some one appearing to act in his behalf, to sign their names as witnesses, it is equivalent to a request made by the testator himself; or at least it is a question to be submitted to a jury, whether in such case the facts do not show a request made by the testator himself. A will is not void, because the person who signed the testator's name to the will, by his direction, neglected to write his own name as a witness to the will. The only consequence of such an omission is a forfeiture of fifty dollars, to be paid by the person in default, to any person interested in the property devised, who will sue for the same. Albany General Term, Feb. 1850. Present Justices WATSON, PARKER and WRIGHT. This was a bill filed in June 1848, for the purpose of proving a lost will. The complaint alleged that Johannes Hollenbeck died on the 18th of March 1848, seized of real and personal estate. That on the 13th December 1831, he procured Doctor Benham to draw his will and execute it in due form to pass real and personal property, in the presence of Jacob C. Van Hoesen and John C. Van Hoesen, and that the will was enclosed in a wrapper and left with Doct.Benham for safe keeping. That on the 10th April 1848, the plaintiff, being the widow of the deceased, procured the said will from the family of Doctor B. (who had died in 1834); that on the 11th April 1848, the plaintiff caused the will to be read in the presence of those interested Hollenbeck agt. Van Valkenburgh and others. in the estate and had a copy of it made by Richard Van Valkenburgh; that a few days afterwards she showed the will to Messrs. Hogeboom and Collier, counsellors at law, and was proceeding under their advice to have the will proved before the surrogate of Greene county; that before the citations were returnable; and on the 17th April, she put the will into a trunk where her husband had kept his valuable papers and locked the trunk; and that on the 23d of April she discovered the trunk had been opened and the will taken away, and that she had since been unable to find the same. Three of the defendants, Johannes Hollenbeck and wife, and Edward Hollenbeck, put in an answer denying all these allegations. The infant defendants put in general answers. The bill was taken as confessed by Richard Van Valkenburgh and wife, and Henry J. B. Tolley. By the alleged will, the testator gave to Caspar Hollenbeck, his son by a former marriage, five acres of woodland during his life, which; after the death of Caspar, went to Johannes and Catherine, children of Caspar. He then gave all the residue of his property, real and personal, to the plaintiff for life, and after her death to his daughters Catherine and Phebe Ann. The plaintiff was to pay the debts. Catherine married Richard Van Valkenburgh; Phebe Ann married Henry J. B. Tolley and died in July 1848, leaving three infant children. Caspar died in 1840, leaving a widow and the following named children, viz: Johannes Hollenbeck, Catherine, wife of Charles Champlin, Edward Hollenbeck and Sarah Elizabeth Hollenbeck, an infant. The cause was referred to Caleb Day, Esq. for hearing and decision, and the referee reported in favor of establishing the will. The defendants moved to set aside the report on the merits, and the cause was ordered to be heard at a general term. H. HOGEBOOM, for Plaintiff. K. MILLER, for Defendants. By the Court, PARKER, J.-This cause was commenced in equity before the Code took effect, and was tried before the re |