¶1I cannot concur in the reversal of the order made by me at special term, and adhere to the views then expressed. The reversal is put, as I undestand it, upon the grounds contained in the opinion of my brother Welles, in the case of Clark agt. The City of Rochester. The facts of this case, it seems to me, are a complete answer to the opinion of mj- brother Welles in that case. In that opinion he treats the extra allowance as though it were part of the damages—like interest, necessarily to be included in the primary judgment at the circuit, or not recoverable, and lost absolutely. In this case the extra allowance it appears before us on the motion to dismiss the appeal, was in fact included in the adjustment of costs upon the affirmance by the general term of the judgment rendered upon the report of the referee who tried the cause. Judgment had been duly entered up and perfected, and an appeal therefrom duly taken to the court of appeals, before the bringing of the appeal from the order granting the extra allowance, which appeal is still pending in that court. This judgment was, therefore, clearly valid. It could not have been set aside for irregularity, and the order of this court reversing the order at special term, will be clearly inoperative until the judgment is opened arid the costs readjusted, and the extra allowance stricken out. This court clearly now has no such power over this judgment. It is before the court of appeals for review. This it seems to me shows that the extra allowance can clearly be made after the judgment at the circuit, whenever it can be included in any adjustment of costs, and go into a judgment, and that such judgment including such extra allowance will be clearly valid, and this seems to me *113to confirm my view at special term, that this extra allowance may be granted by the court whenever it can be included in a judgment entered up under its authority.
¶2No question is made that the extra allowance was proper in amount and made in a proper case, if it had been granted before judgment.