Grant v. Pratt

Ingraham, J. : In connection with the appeal from the judgment in this action there is presented an appeal from an order which refused to tax cer [150] tain costs and disbursements which had been paid by the defendant as a condition for allowing the defendant to amend-its answer. This question arises as follows After the second appeal to-this court (87 App. Div. 490) the defendant moved in thepourt below for leave to amend its answer by withdrawing an admission and.inserting in lieu thereof a denial of a material’ allegation of the complaint. This motion was granted upon condition that the defendant should, within thirty days after the date of -the order, “ pay to the plaintiff,, dr his attorneys, the amount of the plaintiff’s taxable costs herein to date, then and thereupon the said motion .for permission to amend the defendant’s answer in accordance with the terms of the said amended answer verified December.-,8th, 1903, and for leave to serve such amended answer, be, and it hereby is granted.” ■ In pursuance of this leave the defendant paid to the plaintiff his taxable" costs to date, amountitig in all to the sum-of $785.54.' This item of $785.54 was made- up of $509.94 disbursements and $275.60 costs. It is clear that the plaintiff was not entitled to again tax the -disbursements that had béen incurred prior to the amendment and which as a condition for allowing the. amendment had been actually paid by the defendant. Disbursements when inserted in a bill of costs are for the purpose of reimbursing the successful party for the moneys that he'has disbursed during the pendency of the action which, under the Code,, are to be paid by -the defeated party, but'when these' disburse^ments have been paid t>y the defeated party, .whether as a condition for an amendment or otherwise, they have been páid by the party whose duty it was to pay them.. As to the actual costs allowed to the successful party a different' question is presented. When the amended answer was.allowed the" issues presented were, changed,- and in substance the ,plaintiff was. compelled to begin a new action! He had before that time relied upon the admissions in'.the answer as to a breach of the contract _by,the. defendant.. All the legal and chargeable costs and disbursements, including the taxable costs up to that time to which the plaintiff would" be entitled in case he succeeded, were paid as a condition for allowing the amendment. • From thence oh the plaintiff was compelled to proceed as if it had at that time instituted a new action. It is true'that' it did not have to prepare a new complaint, but with the exception of the preparation of a new complaint all of [151] the acts necessary to be done in preparing the case for trial and bringing it on for trial had to be performed again with the same effect as if the action had at the time of the amendment been' discontinued and a new action commenced. I think, therefore, that upon obtaining a judgment in his favor the plaintiff was entitled to' tax the costs before notice for trial, after notice of trial, with the term fee and the costs for all subsequent proceedings. So far as the costs of the appeals were included within this bill of costs, it seems to. me clear that the plaintiff was not entitled to tax those items again. Costs were allowed to the plaintiff for his successful efforts to have reversed a judgment which had been rendered against him, but when those costs were once paid the plaintiff could not recover for the same services twice, as he would if he were entitled to tax the costs for the same appeal after they had once been taxed and paid. When these costs were paid they were settled and discharged, as were the disbursements which the defendants had repaid to the plaintiff and which, when they were paid, were settled' and discharged. There is nothing to show that the stenographer’s minutes of the testimony taken on the trial when the jury were discharged were ordered for use at the subsequent trial or that they were there used by the plaintiff. They were not, therefore, a necessary disbursement. It follows that the order appealed from should be modified by directing a retaxation and directing the clerk to tax all the costs before and after notice of trial, and all costs subsequent to the amendment, and as modified affirmed, without costs to either party on this appeal. O’Brien, P. J., Patterson and Laughlin, JJ., concurred. Order modified as directed in opinion, and as modified affirmed, without costs.