Selover v. Wisner

Balcom, J. This action was tried at the Schuyler circuit in April, 1868, when the plaintiffs obtained a verdict for $50, damages. The defendant made a case, to which the plaintiffs proposed amendments. The case was settled and the defendant made a motion thereon for a new trial at the Tompkins special term in September, 1868, which motion was denied with costs. The plaintiffs’ costs were adjusted by the clerk of Schuyler county in February, 1869. He struck out of the same the following-items, viz.: “Making and serving amendments to case.......$10. On application for new trial on a case made before argument...........................20. For argument................................40.” The plaintiffs’ counsel contends that the clerk erred in disaEowing these items and in striking the same from the plaintiffs’ biE of costs. „ It is provided by subdivision three of section 307 of the Code, as amended in 1866, that a party shall be allowed ten [177] dollars “for making and serving amendments to a case.” (Laws of 1866, vol. 2, p. 1840.) And that subdivision of section 307 remains unaltered and is in force. The clerk therefore erred in striking out of the plaintiffs’ costs the charge of $10, for “making and serving amendments to case.” Subdivision five of section 307 of the Code, was amended in 1867 so it reads as follows, viz.: • “ 5, To either party on appeal, except to the court of appeals and except appeals in the cases mentioned in subdivisions one, three, four and five of section 349, and except in cases mentioned in the second paragraph of section 344, before argument, twenty dollars; for argument, forty dollars ; and the same costs shall be allowed to either party before argument and for argument on application for judgment, upon special verdict, or upon yerdict subject to the opinion of the court, or for a new trial on a case made, and in cases where exceptions are ordered to be heard in the first instance at a general .term, under the provisions of section 265.” (Laws of 1867, vol. 2, p. 1924.) An application for judgment upon a special verdict, or for a new trial on a case made, must in the first instance be heard and decided at the circuit or special term. (Code, § 265.) For this reason and the reasons assigned in Scudder agt. Gori (18 Abb., 207), I am of the opinion the plaintiffs were entitled to $20 on the defendant’s application for a new trial on a case made before argument at the special term, and also to $40 for argument at such term in opposition to the motion for a new trial. ' The reasoning on this question in Scudder agt. Gori (supra), is conclusive in my judgment in favor of the allowance to the plaintiffs of these items of costs. My conclusion therefore is, that an order should be made directing the clerk of Schuyler county to readjust the plaintiffs’ costs and allow the above mentioned rejected items and strike from such costs the charge of $10 allowed on the mo [178] tion for a new trial. And the order will also direct such clerk to amend the judgment roll in the action and the docket of the judgment so as to conform to the amount of costs as readjusted. No costs arc allowed either party on this motion.