The stipulation between the parties, by means of which the application for a further allowance for costs was postponed until after judgment, contained a reservation of the rights of the respective parties. The right to a review was fairly included in this reservation, and that was possibly the motive for entering into the stipulation. But by postponing the application until after judgment, it was impossible to include the order for the further allowance in the judgment. The case, on its general merits, was consequently renewed at the general term and in this court, upon a record which contained no allusion to any such further allowance. It would violate the spirit of the agreement if we should hold that the plaintiffs are precluded by this course of proceeding from presenting to the tribunals of review any questions which might have been made if the application had .been heard and determined before judgment, and the order had been incorporated in the judgment. It follows, I think, that in considering the appeal from the order, we should act upon the same principle which would have governed us if we were sitting in review of the judgment, after án affirmance by the general term, and had found tiffs order for an extra allowance among the papers returned upon the appeal. If it had been made before judgment, the record returned here would have contained the papers used on the application, .the order of the special term making an allowance of $20,000 in favor of the defendants, the appeal, if there had been one, to the general term from the order, and the dismissal of that appeal on the ground that the decision , of the single judge at the special term as to the amount' of the allowance was conclusive. As it was made after judgment, pursuant to a stipulation by which all rights *421are reserved, we must, on the appeal from the order, exer - cise the same jurisdiction which would have belonged to us if the order had been parcel of the judgment; we can not in any other way give effect to the terms and plain intention of the stipulation.

If I am right in this view, the question before us is whether the discretion ,of the court, mentioned in the 309th section of the code, is an uncontrollable discretion of a single judge, not subject to be examined by the general term of the supreme court. If this is the case, ijfc is- obvipus that allowances in the nature of judgments for very large sums, may be passed by one judge, without a right to question their correctness before any higher tribunal, while many other orders and the verdicts of juries for any amount, however -small, are subject to be examined upon several successive appeals. The question, therefore, is, whether an order for an extra allowance made by a single judge before judgment, is the subject of an appeal to the general term. By the section of the code, providing for appeals from orders of a single judge to the general term (§ 349), one of the cases in which an appeal lies is where the order involves the merits of the action, or some parts thereof, or affects a substantial, right. It may, perhaps, be doubted whether a question respecting the costs can be said to involve the merits of the action; but. I think this order affects a substantial right, within the meaning of the section. In construing the section we see in the first place that it concedes that ttiere are some orders of a special term which are not the subjects of an appeal to the general term, and that such as affect a substantial right are not within that category. In a general way it may be said that every order which may be made in a cause affects, the rights of the parties in some appreciable manner. What, (lien, is meant by the term substantial right? In my opinion it is distinguished from a formal right. Suitors have :i certain right to require the observance of all the terms *422of legal procedure; but inasmuch as it would be productive of infinite delay and expense if every decision upon a matter of practice was subject to be examined on appeal, the legislature wisely determined that the litigation upon such points, which were generally of minor'importance, should be limited to the court or judge who first made the order. Parties frequently commit loches in the proceedings in an action, and are obliged to apply to the court for relief, or to be let in to answer or the like, and proceedings are frequently set aside for irregularity, upon or without terms; and the cause proceeds; and it may be eventually determined in favor of the party who was beaten on the motion. These orders, or some of them, are only important in respect to the manner in which the case is eventually to be tried on the merits. Without now undertaking further to classify them, it is sufficient to say that an order which peremptorily and finally charges a party with the payment of a sum of money, great or small, which he ought not to pay, or with a greater amount than he oughl to pay, affects his rights, not in a matter of form but in substance; and such was the nature of the order in this case. It was, therefore, examinable at the general term, and it was error in the general term to refuse to take cognizance of and to examine it on the merits, on the plaintiff’s appeal.

The further question is, whether we have jurisdiction to correct this error on an appeal from the order of dismissal. It is no answer to say that it did not enter into the judgment, and thus become an intermediate order within the first-subdivision of the eleventh section of the code. The stipulation waives that objection, as has been already stated. We have, on a former occasion, sat in review of the judgment, and have affirmed it; but the order was not then in the judgment, and could not be reached, if we would otherwise have had jurisdiction of such a question. We have-no jurisdiction to review intermediate orders before judg*423ment in the action, except such as determine the action and prevent a judgment. But' on an appeal from the judgment we are to review any intermediate order involving the merits, and necessarily affecting the judgment. Supposing this order to have been made before judgment, and to have been brought up to the general term by the appeal from the judgment, as would have been the case but for the stipulation, could we say that it did not necessarily affect the judgment? To my mind, it affected it in this way: It rendered that absolute and final which was in law examinable at the general term, and this was affected by the order of dismissal which is appealed from. Hence I am in favor of reversing that order.

Whether we could examine the merits of the allowance is another question. We have, in several cases, disclaimed any right to interfere with an adjudication which was discretionary in the supreme court. The code, in terms, makes this matter of extra allowances discretionary. It is not implied from this, that it is the discretion alone of the single judge who makes the order; nor does that expression affect at all the jurisdiction of the several branches of the supreme court. When the case is removed to another court whose province it is to review determinations in matters of .law of. the "subordinate tribunals, the matter is presented in a different aspect, and it seems to me that we cannot review the .discretion of the supreme court.

Davies, Mullin and Weight, JJ., concurred with the chief judge.

The order at special term was made upon a summary application in the action# after judgment. It was a final order, and most clearly affected a substantial right. It cannot be doubted that a final order Which gives a party, to an action the legal right to demand, and to enforce the. collection of, the sum of $20,000, or any other snm of money, which he would not have, otherwise, is a substantial right.

*424Whether this court has jurisdiction to review'the. order appealed from, depends entirely,- in my judgment, upon the question whether the supreme court at general term should have reviewed the order of the special term on the appeal taken, instead of dismissing such appeal. If it should, a substantial legal right has been affected; and the fact that-the original order was made in a summary application after judgment, places the jurisdiction of this court to review the order in question beyond all doubt. This question is not in the least affected by the circumstance that the right to make the summary application for the order after judgment was seemed to, or conferred upon, the defendant by the written stipulation of the plaintiff’s attorney; nor by the terms of the stipulation, that after the decision of the action by the court of appeals the prevailing party on such appeal might apply to the supreme court for a further allowance, “with the same effect as if the application for such further allowance were made immediately after the trial of said action, in the supreme court.” It is quite immaterial how, or by what means, the defendant acquired the legal right to make his application in the action after-judgment, .instead of making it before judgment. It is enough that he had the legal right, and exercised it. The law then conferred upon this court* jurisdiction to réview the order upon appeal, and the parties could not, by the terms of their stipulation, deprive it of such jurisdiction. Parties cannot, by stipulation, limit or take away jurisdiction from a court, any more than they can confer it. The terms “ with the same effect,” contained in the stipulation, were doubtless intended by the parties to apply only to the validity of the order, which might be made upon the application provided for, and not at all to the jurisdiction of any court to review it on appeal. At any rate, they can have no other,legal operation. The stipulation did not, however, and could not, "nothwithstanding these terms, secure to the defendant the same rights in respect to the *425further allowance when made, that it would have had, had the application been made before judgment. Had it been made before judgment, the further allowance would have entered into the judgment and formed part of it. How it is no part of the judgment, but stands as a legal claim against the plaintiff, and depends upon the .validity of the order alone.

We come, then, to the question whether the supreme court at general term should have entertained the question apon the appeal, and determined the matter involved in the appeal upon its merits. I am clearly of the opinion that 4 should. That the right involved in the allowance, if it be a legal right, is a substantial one, Jias been already sufficiently shown.

The only question whiéh remains to be considered, therefore, is, whether the amount of a further allowance within the statutory limit, where it has been determined "that a further allowance is proper, rests in the mere arbitrary discretion of the judge, or whether such amount depends upon and is to be governed by some rule or principle of law. I have no doubt that it is strictly a matter of law when the judge making the allowance undertakes to give to the prevailing party any sum beyond what is necessary to indemnify such party for his expenses in the action, upon the facts appearing on the application. The code, §303, abrogated all the former rules and provisions of law on the subject of costs in actidhs, and provided that the prevailing party should have certain sums which are specified and fixed, “by way of indemnity for his expenses in the action,” and which are termed costs, in the act. It is then provided by § 309 of the code, that in difficult and extraordinary cases, with certain specified exceptions, where a trial has been had, “ the court may in its discretion make a further allowance to any party not exceeding five per cent upon the recovery or claim or subject matter involved.”

The object of this provision plainly was not to give *426exemplary damages or smart money Tby way of punishment to a party for bringing a difficult or extraordinary action which he should be unable to maintain, nor to enable the prevailing party to make anything in the way of gain or profit over and above the expenses for maintaining or defending such an action. This cannot be claimed with any show7 of reason. . The object and intention, manifestly, were to enable the prevailing party to obtain indemnity for his expenses in actions of this kind, which would not be covered by the ordinary allowance prescribed for all actions. And any allowance beyond what was necessary to indemnify for the actual expenses of the action would be . as unauthorized and illegal as the allowance of an improper item in a bill of costs upon taxation; and the right to redress would be just as clear and certain in the one case as in the other. Such being the nature and character of this further allowance, it is plain that the party against -whom the allowance is made has the right of appeal from the order, whenever the question is fairly raised whether the limit of indemnity for expenses of the action has not been transcended, in view of the facts before the court upon which the allowance is made. And I am clearly of the opinion that no such allowance can be rightfully made in any case without proof, showing the necessity of further indemnity, for the expenses of the action, and the amount of the expense incurred for which indemnity is thus sought. Most certainly this should be required where the application is made before a judge who did not try the action. The. order cannot properly be made and the amount fixed upon mere speculation or conjecture, but must be based upon due proof showing the action to be a proper one for such an allowance, and the necessity of further allowance for the pmrpose of indemnity for ex2>enses actually incurred, and which are the 23roper subject of conrpensation by the rules of law. It is conceded by the plaintiff’s counsel, that the action was sufficiently difficult and extraordinary *427in its character to justify the further allowance of some amount by way of indemnity, but it is insisted that the evidence before the court did not justify the allowance of this extraordinary and unprecedented sum.

On the other hand, it is claimed, in behalf of the defendant, that the amount within the statute limit of five per cent on the amount claimed, or subject matter involved is matter of pure and unmixed discretion in the judge by whom the amount is fixed, without reference to any fact or circumstance 'other than that of the difficult or extraordinary character of the action; and that had the judge in this case granted an allowance of $250^000, or even $500,000, no appellate court could have interfered in any way, and the allowance would have stood a perfectly legal and valid Claim capable of being enforced against the plaintiffs. This would, certainly follow, if the amount within the limit of the. statute is a matter qf discretion simply on the part of the judge, and does not depend upon any legal principle or rule; which I have endeavored to show is not the case.

It is true that the language of the section is, that “the court may also, in its discretion, make a further allowance.” But this manifestly does not mean a mere arbitrary unregulated discretion, but a judicial discretion to be exercised upon certain conditions, and in reference only to certain definite ends. It can be exercised only in a certain class of cases; it cannot exceed a certain percentage, whether full indemnity for the expenses of the action is thereby secured or not; and must, as we have seen, be confined to indemnity—for the expenses, contemplated by the section, alone. If it is attempted to be exercised in an ordinary action in no respect difficult; or if the prescribed percentage is exceeded, or the allowance exceeds a just measure of indemnity according to the proofs, it is exercised in violation of a legal right, and an appeal lies the same as for any other error of law.

It is not necessary for this court to determine that the *428general term should, have reversed the order of the special term, hut only that the order was appealable, and the appeal, should have been entertained, and the matter involved in it there passed upon. But as the whole case is before us, we may and ought, I think, to determine what items of expense may be properly included in such an allowance. The amount allowed is altogether unprecedented, equal to the salary of the learned judge who granted the order, for his official services for over five years and a half, and leads almost irresistibly to ;'the inference that some item of expense must have been included, which the law does not authorize and will justify. It was held by this court in Wolfe v. Van Nostrand (2 Comst. 570), that this further allowance under §309 was, by way of indemnity, for the expense of the trial in the court of original jurisdiction, and not in the appellate court. That decision was, I think, clearly correct, and in strict accordance with the design of the statute, and the uniform practice of the courts. The allowance can only be made where a trial has been had, even in difficult and extraordinary actions, and the practice is to make the motion for -it immediately after the trial, without reference to future proceedings by the other party, and to have the sum inserted in the judgment, with the other costs.

It is obvious in the present case, looking at the notice of the motion, the several affidavits used, and the opinion of the learned judge who made the order, that the allowance was made in reference to the entire proceedings in the action throughout, from its commencement to its final determination in the court of appeals. And besides, the papers fail to show that this extraordinary amount of expense has been either paid or incurred by the defendant. The allowance is by way of indemnity for actual expenses in the action necessarily, or at least reasonably, incurred, over and above the amount covered by the. allowances fixed in the statute, and not for speculative or extravagant charges *429because they are made, even if submitted to by the party prevailing. It should be shown not only what the expenses are for which the further allowance is claimed, but also that they have been necessarily, reasonably, and fairly incurred in reference to the trial.

In this view it is quite clear that the appeal to the general term was properly taken, and should have been there entertained, and the merits passed upon. The order of dismissal should, therefore, be reversed.

(dissenting). In this case I have come to the following conclusions:

1. The case is difficult and extraordinary, within the meaning of section 309 of the code. The character and magnitude of the claim, the importance of the interests involved, the length of time it has occupied, and the severity with which it has been contested, bring it fairly within the purview of this section. It is not denied to be so by the plaintiff’s counsel, and it was practically conceded to be so by the original stipulation for an extra allowance. The case is, therefore, one in which the judge had jurisdiction to act.

2. The court which made the allowance, kept within the limits of the statute—that is, it did not make an allowance for an amount exceeding that authorized by the code. The claim was $5,000,000, and the allowance was less than one-half of one per cent of that sum, instead of five per cent, which it had the power to make. There was, therefore, no violation of the statute in this particular.

3. It was a case plainly by the terms of the statute, within the limits prescribed, in the discretion of the court. The express words are that “the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent upon the amount of the recovery or claim.”

4. Judicial discretion is not subject to review m an *430appellate tribunal. From its very nature it can not be subjected to any fixed or very precise or definite mode of action. And it is impossible for an appellate court, though it may differ with the original tribunal in such cases, to say that it has erred in law. -There is no standard by which the true boundaries of discretion may be gouged or measured. Hence, by a uniform course of adjudication, matters resting within the discretion of the primary court are-held to be not open to review or discussion upon appeal.

The objection that discretionary power is not reviewable on appeal is not obviated by saying that this order “affects a substantial right,” and was, therefore, reviewable at the general term .under section 349 of the code.. It does not involve a siibstantial right, in my opinion, within the meaning of the code. For although an extra allowance so large as that made in this case affects materially the amount of the recovery or judgment, it does not affect a legal, fixed or determined right. A substantial right is something to which, upon proved or conceded facts, a party may lay claim as matter of law—which a court may not legally refuse—and to which it can be seen that the party is entitled within well séttled rules of law. There is many a point of practice and matter of discretion, the decision of which may directly or indirectly affect a party’s pecuniary interests to the amount of thousands of dollars, and in a loose and general sense may be said to affect a substantial right, but which has never been pretended to be embraced within this language. I have supposed that by a series of well-considered decisions mere questions of practice and of discretion have by nearly unanimous judicial construction been regarded as excluded from the terms and not the spirit of this section of the code.

5. It has been said in some cases that this rule is subject to this qualification, that when the discretion shall appear to have been abused, the appellate forum may interfere. *431And there are cases holding that a gross and palpable abuse of discretion may be controlled and reversed. It has been doubtfd whether the power of review in such a case rests upon any very clear or firm foundation in the law, but I will assume it to exist. Making this assumption, I am not prepared to say that there has been in this case any such abuse of discretion as authorizes an appellate tribunal to interpose. The exercise of an honest judgment, however erroneous it may appear to be, is not an abuse of discretion. Abuse. of discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify an interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. In none of these particulars, in my opinion, is there just cause for imputation against the judge who pronounced this decision. Independent of his high character and position, I can find nothing in the facts of the case which justly exposes him to censure in these respects. He may have erred in judgment. It is not our province, I think, to determine whether he did so or not. It is quite possible many or any of us would not have reached the same precise conclusion. But this is not and can not be the question. The question is, has 'his discretion been abused—has the result arrived at by him been produced by the exercise of an arbitrary and unlawful discretion? I am not prepared to say that it has.

It is said this was a question for the general term of .the supreme court, and that they have not passed upon this aspect of the case, and that therefore their order should be reversed and the case remanded to them with directions to consider it in that respect. But I think this is not so, for the following reasons:

1st. It is not clear that they have not examined this view of the case. ■ They dismissed the appeal, it is true, as an order not appealable, and so far as we can infer from their *432opinion, as not appealable because governed by the discretion of the original tribunal, but we can not tsay, I think, whether they put their decision upon the ground that no review whatever could be had in any case where discretion was invoked, however flagrantly improper or. corrupt may have been the exercise of that discretion, or upon the ground that no case for interference upon appeal had been made because there had not been any abuse of discretion or assumption of unlawful or unregulated authority.

2d. If it is clear to us that upon the same papers before us as there were before them, there was no such abuse of discretion as would justify a reversal of the order of the original tribunal, we may well affirm their order, or dismiss the appeal from it upon the well-established rule that a right result' is not to be overthrown though founded upon a wrong reason. • So far as the question of discretion is concerned, the right of review is precisely the same with them as with us. If there has been no exercise of discretion that can be properly interfered with by an appel late tribunal, the disability to interfere is the same with them as with us, and the same with us as with them. It rests upon general principles of law forbidding an interference with judicial discretion. It would, therefore, be quite useless to remand the case back to them to sit in review upon the exercise of a discretion with which we are of opinion neither they nor we can lawfully interfere.

3d. So far as we know, it was not urged before them, as it has not been by the plaintiffs’ counsel here, that they were bound to interfere because there had been that kind of1 abuse of discretion which justified its being corrected and rebuked for the, arbitrariness or perversity of its exercise. If counsel will not press the case in such an aspect, it cannot be regarded as the duty of the court to strain for reasons of that description to justify its interference. Hundreds of cases.are every year disposed of in pur courts upon the ground that an erroneous exercise of discretion is *433not the subject of appeal, without its having, been thought necessary to argue or decide the appealability of the discretionary order on the ground of abuse of discretion. The contrary is always to be presumed; and. it must be a very flagrant and exceptional case to justify an argument or a decision founded upon such a view of the case. Nor has the propriety of the numerous decisions, refusing to interfere in cases of discretion, been impugned, that I am aware of, because, in the opinion of the court, the point has not been mooted or debated whether the order of the primary tribunal, was not liable to be overthrown for abuse of discretion. °

4th. Finally, this court has decided in the case of The New York Ice Company v. The Northwestern Insurance Company (23 N. Y. 357), that even where the general term of the supreme court has entertained an appeal from an order not appealable, because resting in discretion, and has reversed it, this court will not entertain an appeal from the decision of the general term. .

If this case, therefore, is to turn on the question of discretion, or its abuse, I am of opinion that the appeal from the order of the general term should be dismissed.

6. It is said, however, that there is a question of power' in the case, and that the judge exceeded his authority because he based his allowance in part upon matters not authorized to be taken into ■ consideration, to wit: upon expenses not incident to the trial of the cause.

1st. It is not quite manifest, upon the published opinion of the judge, whether he graduated his allowance in part upon the expenditures incurred on appeal, or merely alluded to them to illustrate the difficult and extraordinary character of the case.

2d. But I am of opinion that the proper construction of the statute authorizes the judge to graduate the allowance by a consideration of all the necessary or probable reasonable expenditures incurred, or to be incurred, in the course *434of the whole litigation. The code declares it must be in cases “where a trial has been had,” but by no means limits the allowance to the expenses of the trial. It is the difficult and extraordinary character of the case, the amount in controversy, the severity, extent and duration of the litigation, which are all to be considered on this question, and which enter into the equity of the allowance. Section 308 makes certain allowances in particular cases upon the recovery of judgment, but not because the expenses are .principally incurred in the recovery and entry of the judgment, but in the cause itself—the proceedings necessary to its proper commencement, conduct and consummation, and the character of the subject matter involved.

I am further of opinion that, as the matter is left to the discretion of the judge, and no precise mode is prescribed for obtaining the information on which his discretion is to be exercised, he may do it—especially if not objected to by the parties—in any mode likely to procure authentic knowledge of the particulars which should govern him in fixing the allowance. This may be in part from his own knowledge of the case, obtained in the course of the trial; in part from the 'sworn or uncontroverted statements of counsel and parties; and these may have reference to prospective as well as past litigation. In the case now before us, no objection to the sources of information is made; the facts appear by affidavit, and come up in that way by the consent of the parties.

It is suggested, it is true, in a very brief memorandum, in the case of Wolfe v. Van Nostrand (2 Comst. 570), that the allowance should be regulated by what appeared on the trial; but this was not the point in judgment, nor necessary or proper to the decision of the case. It can scarcely have been intended as binding authority; nor should it have that effect. It does not appear to have been much considered on this point, nor does it discuss the lan: guage of the statute.

*4357. It is further contended that, inasmuch as the object of these allowances, both in law and in reason, is indemnity to a party; and inasmuch as there is no evidence in the papers that an amount so large is necessary for such purpose; and inasmuch as such amount appears to be unreasonable and excessive, the matter is within the control of the appellate tribunal, and it has a right to interfere because the special term has transcended in effect the limits of the statute. ' But this rather assumes the point in controversy. The allowance should not pass the bounds of a just indemnity; but what those bounds are, is left, below a certain maximum amount, to the discretion of the original tribunal. The opposing papers do not name any certain amount, and the moving papers name the amount actually allowed. What was actually charged by counsel to client does not appear; but that is not the test, as it may have been extravagant. Nor is the omission to state in the papers the precise amount which would constitute indemnity, a fatal omission. The matter is after all referred to the judgment of the court, and when that is honestly, and not arbitrarily, exercised, it is in my opinion final.

Such a view of the case may in some instances work injustice and lead to extravagant' allowances, but, as was said in the court below, the vice is in the system itself. I agree that that is wrong, and should be corrected; but I think the correction should come from the hands of the legislature, and not of the courts.

On the whole, I regard the order as properly disposed of at the general term of the supreme court, and as not properly here for consideration upon its merits. I think the appeal should be dismissed.

Selden and Tsgbaham, JJ., took no part in the decision.

Order reversed.