§ 8303.Additional allowance in the discretion of the court.

Subd (a) of this section is derived from RCP 200 and 300 and CPA §§ 1513, 1514 and 1514-a. The opening phrase of this subdivision is a simplification of RCP 200, with the deletion of the former requirement that the application might only have been made before final costs were adjusted (i.e., taxed). Because the former practice was to tax costs without notice (see introduction to article 84), and because the party to be benefited by an additional allowance might not have been the party who taxes costs, there is no reason why an application cannot be made as part of a motion to review taxation. Subparagraphs 1, 2, and 3 of the subdivision are derived from subparagraph 1 and 2 of CPA § 1513. Since the opening phrase of the former section was redundant of the subparagraphs, it has been omitted. Indeed, it was apparently inaccurate, for no reference was included to subparagraph 4, which was added in 1957. Laws 1957, c. 693. By contrast, when subparagraph 3 was added in 1950, the introductory paragraph was amended to include the matter covered. Laws 1950, c. 654. Moreover, the opening phrase was ambiguous; this subdivision apparently accords with the meaning intended. Cf. Code Civ Proc § 3253. Subparagraph 1 of the subdivision differs from subparagraph 1 of CPA § 1513 in that the maximum allowance has been increased from two to three hundred dollars. Subparagraph 2 of the subdivision is derived from part of subparagraph 2 of CPA § 1513; the remainder of the latter appears as subparagraph 3. The maximum allowance of two thousand dollars prescribed by CPA § 1514 has been increased to three thousand dollars and incorporated into these provisions. CPA § 1514, which was also not amended in 1957 to include reference to former subparagraph 4, was expressly applicable to CPA §§ 1512 and 1510(4) as well as to subparagraph 2 of CPA § 1513. Since CPA § 1510(4) has been omitted (see notes to § 8204), the reference to it in CPA § 1514 is unnecessary. The reference to CPA § 1512 has also been deleted. The effect of the deletion is to increase the aggregate maximum allowance in a partition action by $150, the maximum amount which was awarded under CPA § 1512 (and § 8202). Since it will certainly be within the discretion of the court to take into account any sum to which the plaintiff is entitled under § 8202 when awarding an additional allowance under subparagraphs 2 or 3 of this subdivision, the deletion is not greatly significant. The phrase “difficult and extraordinary” of the former section has been changed to “difficult or extraordinary” to allow greater flexibility in awarding allowances. This change represents a return to the original wording of the statute. See 3 NY Jud Council Rep 320 (1937). Subparagraph 3 of CPA § 1513, as well as the references to it in both subparagraph 2 and the opening phrase of the section, has been deleted. As subparagraph 3 indicates, the matter is covered by the Tax Law. Like other sections of the Consolidated Laws which make specific provision for allowances, the Tax Law sections would control in their specific area and thus supplement the general provisions of the subdivision. For similar reasons, subparagraph 4 of CPA § 1513 has been omitted from the new CPLR; its provisions apparently applied only to the Attorney General, despite the use of the word “plaintiffs.” The provisions of the Consolidated Laws referred to have each been amended to include the substance of the subparagraph, and of CPA § 1514, to which it also referred, by adding the following sentence to § 342 and to subd 1 of § 353 of the General Business Law:

In such an action, the court may award to the plaintiff a sum not in excess of two thousand dollars as an additional allowance. and by adding the following sentence to § 96 of the General Corporation Law:

The Court may also award to the plaintiff a sum not in excess of two thousand dollars as an additional allowance.

Subparagraph 4 of CPA § 1513 also referred to CPA art 75. Although article 75 did provide for an action by a private person (see CPA § 1214), it was only the Attorney General’s action to which the terms of subparagraph 4 applied. It is doubtful that the word “plaintiffs” was intended to include a possible relator in such an action (see CPA § 1215), for an additional allowance does not seem warranted for a relator, if none is provided for a person entitled to the office or a complainant. Cf. CPA §§ 1210, 1211, 1214. Since CPA § 1216 already provided for a discretionary “fine” to be paid the state in an amount not exceeding two thousand dollars, the provision in CPA § 1513(4) for an identical “additional allowance” to the Attorney General has been deleted as unnecessary. CPA art 75, including the “fine” provision of § 1216, has been transferred as § 63-b of the Executive Law. Subparagraph 4 of the subdivision is based upon CPA § 1514-a, which was also added in 1957. Laws 1957, c. 89. No change is intended. See also notes to § 8203(a). Subparagraph 5 of the subdivision is based upon RCP 300. The proceeding intended is that covered by RCP 296 through 299 and CPA §§ 1385 through 1406. Those former provisions have been transferred as article 25 of the Real Property Law. Rule 300 originally limited costs and disbursements to twenty-five dollars plus the expense of a surety bond and ten dollars referee’s fees, in cases where the infant’s interest did not exceed one thousand dollars. In 1956, it was amended to provide for disbursements and an allowance to the infant’s attorney. Since the restriction to cases where the infant’s interest was less than one thousand dollars was retained, however, the wording implied that neither an allowance to the attorney nor disbursements would be allowed when the infant’s interest exceeded that amount. That result was obviously not the one intended, and this subparagraph deletes the limitation. In all cases, the court will consider the size of the infant’s interest in determining the amount to be allowed under this subparagraph. The provisions in RCP 300 concerning disbursements are covered by §§ 8301(a) and 8301(c). Subparagraph 6 of subd (a) was added at the request of the Attorney General to make certain that the provisions for additional allowances provided by other statutes are not deemed repealed.

Subd (b) of this section replaces part of subd 1 of CPA § 803. Since many of the enforcement procedures now pursued by special proceedings supplementary to judgment have been converted to motions by article 52, the provision permits the court to award an additional allowance to a judgment creditor equivalent to the costs formerly provided for supplementary proceedings. The provisions for disbursements in CPA § 803(1) are covered by § 8301(b). The last sentence of CPA § 803(1) has been omitted as unnecessary. Subd 2 of CPA § 803 has been omitted. To the extent that a judgment creditor might cause “undue hardship, expense or loss” to a judgment debtor, article 52 provides ample devices for the court to protect the debtor’s interest. See, e.g., §§ 5223(f), 5239. To the extent that third parties are involved in more than examinations, article 52 requires a special proceeding to be instituted and the general provisions of § 8101 would control costs; the third party is also protected from unwarranted costs by §§ 5224(b), 5226 and 5239. For examinations alone, § 5223(b) requires witness fees to be paid to third parties .

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1963, ch 532, § 1; L 1965, ch 577, § 1; L 1966, ch 224, § 1, eff Sept 1, 1966; L 1971, ch 430, § 1; L 1982, ch 846, § 1; L 1988, ch 500, § 2; L 1988, ch 547, § 1, eff Nov 1, 1988; L 2002, ch 530, § 2, eff March 16, 2003.