Cahill v. Mayor of New York

Ingraham, J.: This action being at issue, the defendant made an application for leave to amend its answer which seems to have been granted “ on payment of the taxable costs to date.” Such costs were taxed at the sum of eighty-five dollars, and were paid by the defendant to the plaintiff and the amended answer served. Subsequently the action came on for trial and the plaintiff recovered a verdict. The plain [277] tiff then sought to tax .all the costs in the action, including the costs which had "been before taxed and paid by the defendant as a condition of being allowed to serve an amended answer. The clerk, upon the taxation, disallowed the items of costs and disbursements which had been paid by the defendant as a condition of such amendment, and upon appeal to the Special Term such taxation was affirmed. We think, under the form of the order allowing the amendment, the taxation of the clerk was right. At the time the motion for leave to amend was made, certain costs had accrued to which the plaintiff, in the event of his succeeding upon the ■ final disposition of the action, would be entitled. There were the costs before notice of trial, costs after notice of trial and term fees, with the disbursements for serving the summons and complaint and placing the case upon the calendar. As á condition of the amendment the court required that the defendant should pay to the plaintiff the taxable costs that had then accrued. The plaintiff thereby became entitled to the costs irrespective of the final result; but they were the costs of the action up to that time, and were taxed and paid as such costs. The plaintiff has thus received the costs of the action that had accrued up to the date of the service of the amended answer. There was nothing in the order allowing the defendant to amend which imposed as a condition of the amendment that the defendant would be liable to pay such costs a second time. The effect of the order granting the amendment was that the costs of that action which had then accrued should be paid to the plaintiff, whether he recovered in the action or not, and those costs he has received. The services for which these costs are allowed had been rendered, the plaintiff’s complaint had been prepared and served and the case had been put upon the calendar. The necessary disbursements incurred up to the time had been awarded to the plaintiff and paid by the defendant. Ho reason appears why the defendant should again pay for these services. This result, we think, accords with the practice and is sustained by authority. Rumsey’s Practice (Yol. 2, p. 513) states the rule as follows : “ Where a favor has been granted to a party on condition of payment of costs, if the party who receives the costs finally succeeds in the action, he cannot tax them again as general costs of the action.” With that statement of the rule we concur. [278] ■' It follows that the order appealed from must be affirmed, with ten dollars costs and disbursements. ■ Patterson and McLaughlin, JJ., concurred ; Van Brunt, P. J., and O’Brien, J"., dissented.