¶1The court concurs with the court below that there had not been such a final adjustment of costs as to preclude the motion for an additional allowance, and is also of the opinion that it is a proper case for an extra allowance. The case had been at issue twice, once by demurrer, and that issue had been displaced by the decision of the general term, *88and the service of the answer allowed by such decision. The service of the answer made an issue of fact, and upon that issue the motion to change the place of trial was made and granted. If that issue was destroyed by the service of a complaint amended merely as to the place of trial, nevertheless the fact that the issue had existed in the case and been made the basis by the court of the order changing the place of trial is not taken out of the case. It is not necessary to decide whether the service of the answer to the amended complaint before the notice of this motion, and before the payment of costs, under the order of discontinuance, wad a joinder of issue in the case. There had already been issues, we think, sufficient to be the basis of the motion for an extra allowance under section 309 of the Code. In this case a defense had been interposed within the meaning of the Oode, and the case is shown to have been a difficult and extraordinary one.
¶2Order affirmed, with costs.
¶3Beady and Daniels, JJ., concurred.