Barnard, P. J.The case was a proper one for an additional allowance. One Thomas Smith died, leaving a will, by which-he made his widow, Mar*800goret Smith, and the defendant Wortmann his executors. Wortmann alone qualified. The complaint alleges that the executor Wortmann and the widow by fraud and collusion obtained a large part of the property of deceased. The plaintiffs are children of testator’s sister, and are entitled to distribution under the will. Answer was put in denying the fraud, and Wortmann alleged a full settlement of his doing before the surrogate of the proper county. The plaintiffs consented to a nonsuit, and subsequently had the default opened, after some delay in performing a condition imposed upon opening the same. The case went upon the day calendar, and was there ready for trial for seven days. Upon the call of the case, and at the commencement of the trial, the plaintiffs again submitted to a nonsuit. It appears that the defendant Wortmann has finally accounted before the surrogate, and that is the reason assigned for the abandonment of the prosecution of the trial. The defendants ought to be compensated by an extra allowance.. The order is reversed, with costs and disbursements.
The motion cannot properly be granted. The amount is to be settled according to the discretion of the special term.