Emmons v. New-York & Erie Railroad

By the court—Welles, Justice. At the time the plaintiff obtained-judgment, he was restricted to three calendar fees. [492] (Code as amended in 1857, § 307.) But I apprehend it was not the design of the legislature to control the parties in any agreement they might make upon the subject, provided there was no reason to suspect collusion between the parties. If an agreement or stipulation is fairly entered into by the attorneys, that the costs of a term shall abide the final event, I perceive no reason why it should not be enforced. The evil, existing at which the amendment limiting the prevailing party to three calendar fees, I apprehend, was a practice alleged to exist in some places of putting causes on the calendar, term after term, for a long time, without any hope of their being reached, and with no other imaginable motive but to enhance the costs, and without making any preparation for the trial. There has not been, that I am aware of, any adjudication in this court upon the precise question involved; and as it appears to me that the amendment of the Code in 1857 was not intended to affect a case where the parties had stipulated on the subject, and as there is no evidence or allegation of any fraud or collusion between them, I am of the opinion that the plaintiff should be permitted to tax the five calendar fees. The order appealed from should be reversed.