Chadwick v. Brother

Welles, Justice. The defendant’s attorneys were regular in procuring the adjustment of the costs. The papers were mailed at Oxford, post paid, on the 20th July; and the costs were to be, and were, adjusted on the 26th. The code (§ 311) requires but two days’ notice. Mail service requires double time (§ 412) wMch, in this case, would have been good if the papers had been mailed on or before the 22d July. The regularity of the defendant’s proceeding does not depend upon whether he is entitled to double costs, which are never allowed under the statute, by virtue of which they are here claimed, except on application to the court (Gr. Pr., 2d. ed. 733 ; 4 Wend. R. 216,) any more than upon the question whether any other item is properly charged. The defendant claimed that he gave the notice the law required ; they were not objected to, and the clerk allowed them. But I think under the circumstances of this case, the plaintiff should be relieved upon terms, provided there is any error in the costs as adjusted. First, as to the two items of $10 each, objected to. Neither of the orders for the examination of the witness or for a commission, gave either party [285] costs. Under the former practice, the party who ultimately should prevail and be entitled to recover costs generally against the other, would be entitled to charge the costs of the motion in his bill. Such costs would abide the final event of the action. But the difficulty under the code is, that no provision is anywhere made for motion costs, excepting in section 315. This section is as follows : “ Costs may be allowed on a motion in the discretion of the court, not exceeding ten dollars.” To entitle a party to costs under that section, they must be given in the order made upon the motion, and the amount must be fixed by the court at $10, or less. They are not regarded as a part of the general costs in the cause, and their collection does not depend upon the ultimate decision of the cause. I think, in this case, they were improperly allowed. Second, as to double costs. The 303d section of the code repeals all statutes establishing or regulating the costs or fees of attorneys, solicitors or counsel in civil actions, and provides for the allowance to the prevailing party upon the judgment certain sums by way of indemnity for his expenses in the action, which are termed costs. Then follows a number of sections declaring in what cases costs shall be, or may be allowed, and fixing the allowance or tariff in each case. No provision is anywhere made in the code for doubling the costs, nor for any increase beyond the specific allowances, excepting in sections 308 and 309, which do not contemplate a case like the present. The Revised Statutes (2 vol., p, 617, § 24,) allows the defendant to recover his taxed costs, and one-half thereof in addition, in certain cases therein mentioned. The present is one of those cases. It is an action against a public officer, elected by the people, for an act done by virtue of his office,- The next section provides that “ when double or treble costs shall be awarded to any defendant, the same shall be deemed to belong to such defendant,” &c. The question is whether these provisions of the Revised Statutes are repealed by the code. I think they are not. They do not touch the question in what cases costs shall be recovered, nor the amount to be recovered in any particular case. The provision is for cases where the defendant recovers costs, whatever the amount or rate of costs may be, (which is left to be regulated by other statutes;) then the defendant shall recover one-half in addition to his taxed costs. Besides, the section of the code referred to, only repeals all statutes establishing or regulating the costs and fees of attorneys, solicitors and counsel, leaving [286] the disbursements to stand as regulated by other statutes, which sometimes amount to the largest half of the bill. Again, the additional one-half of the bill is given by the Revised Statutes to the party, and not to the attorney, solicitor or counsel. The amount of their costs, with the disbursements, are only important in this connection, in order to ascertain what the defendant shall be entitled to beyond what he has to pay as taxable costs. And, finally, there is the same reason for allowing double costs in the cases specified in actions commenced under the code, as in those commenced before. Let an order be entered that on payment of ten dollars costs of this motion, the clerk of Steuben county re-adjust the costs, unless the defendant will stipulate to deduct $20 from the single bill as adjusted, and to reduce the item of $22.17 1-4 so that it shall amount to one-half of the single bill after the said $20 are deducted, and to amend the judgment accordingly; and in case of a re-adjustment by the clerk, he deduct the item of ten dollars charged as “ costs on motion to procure commission,” and the item for the like sum charged as “ costs on motion to procure order to examine L. F. Bigelow,” and also that he reduce the item of $22.17 1-4 so as to amount to one-half of the single bill as re-adjusted.