The opinion
Pratt, J.
The bills of costs and allowance complained of were taxed and allowed on consent of the attorneys; and, under all the circumstances, we think the court below was justified. The bill of defendant’s attorney has been audited and allowed, and the litigation ended under the stipulations made by the attorneys. The defendants have' been guilty of loches in moving to correct the judgment, and, if their attorney exceeded his authority, or committed any wrong by which they were damnified, tneir remedy is against the attorney. The judgment seems to be satisfactory to defendants, except the items of costs and allowance, and it seems to be a case where the defendants wish to avail themselves of the benefits of a judgment while avoiding the stipulation under which it was entered. If the services of Marshall were worth $500, (and, as said before, his claim has been allowed,) then the services of plaintiff’s attorney were well worth $1,000. The defendants assumed to defend the suit, and they were proper parties, and must pay any costs legally awarded. The plaintiiff was obliged to institute the suits, and the amount involved was $25,000. Besides, there was considerable work in procuring affidavits, arguing motions, and preparing for trial. We think, under the construction given to the Code upon this subject, the case was difficult and extraordinary. The suit was meritorious, and by it an expenditure of $25,000 was saved. It has been held that an allowance can be made upon a discontinuance before trial, and that in a suit to restrain a tax an allowance is proper. Coffin v. Coke, 4 Hun, 616 ; Robins v.Gould, 1 Abb. N. C. 133 ; McDonald v. Mallory, 46 N. Y. Super. Ct.58; Comins v. Supervisors, 3 Thomp. & C. 296. The stipulation of defendants’ attorney was within his authority, and must be held binding unless impeached for a want of power. Palen v. Starr, 7 Hun, 422 ; Ferguson v. Crawford, 86 N. Y. 609 . When we consider that no fraud is alleged, that the judgment was consented to and acquiesced in by defendants, and all the other facts and circumstances, it seems that the judgment and order ought to be affirmed.