¶1In their answer the defendants admitted the right of the plaintiff to recover the amount demanded in the complaint. At the opening *128of the trial the defendants renewed this admission, and claimed the affirmative of the issues which arose upon the plaintiff’s reply to the counterclaim set forth in the answer, and the same was allowed to them by the court and the trial proceeded accordingly. The jury found in the defendants’ favor upon the counterclaim for a substantial amount, although largely less than the amount claimed by the defendants, and rendered a verdict in plaintiff’s favor for a sum of money which represented the amount admitted to be due to the plaintiff, after deducting the amount found by them to be due to the defendants upon their counterclaim. The plaintiff’s claim as sued for was not in issue upon the pleadings, and his right to recover it was not litigated upon the trial. The defendants’ counterclaim was in issue, and was actively and persistently contested, and the defendants prevailed thereon. I am of the opinion that the granting of an extra allowance to the plaintiff was unauthorized. (New York, Lake Erie & Western R. Co. v. Carhart, 39 Hun, 363; Commercial National Bank v. Hand, 27 App. Div. 145.)
¶2The case was indeed a difficult and extraordinary one, but this resulted from the contest which arose upon the counterclaim, in which, as stated, the defendants prevailed.
¶3The minutes of the trial and the judgment should be amended by striking out that part of same which awarded an extra allowance to the plaintiff.