In re Widening Hudson Avenue

Landon, J.: The city of Albany does not prosecute the appeal, taken in its name, from the order of the Special Term denying confirmation of the inquisition, awards and assessments, and vacating the exporte taxation of the bill of costs in this matter. The late corporation [582] counsel and city surveyor, who united in said appeal, now ask to have reversed so much of the order appealed from as vacated the taxation of costs. Thomas W. Olcott was heard by counsel before the Special Term which granted the order appealed from, and now asks its affirmance. He is a property holder and tax-payer of the city of Albany, and largely affected by the order. He charges that the bill of costs, which was taxed at $18,324.04, whereof the greater part was paid to the individual appellants, is, in some of its items, illegal, and in others grossly excessive. This the appellants do not deny, but claim that Mr. Olcott had no standing in court, and had no right to be heard at Special Term, and has no such right here. They also urge that the costs having been paid, the payment was made under a mistake of law, and they cannot be recovered back. They cite authorities which, they claim, show that in a like case, upon the application of a tax-payer, an injunction to restrain the payment of the money would not be granted, and that an action to recover the money back cannot be maintained. These authorities are not considered pertinent to the question presented upon this appeal. That question is, had the court at a Special Term, the power to vacate the ex ypa/rte taxation of costs, upon convincing evidence that the bill, in some of its items, was illegal, and in others grossly excessive, and upon being satisfied that the officer, upon whose motion the taxation was made, represented himself instead of his clients, namely: the city and its taxpayers ? The question stated, the answer is obvious. A court or judge may be misled in regard to matters of fact; but the imposition does not foreclose correction. The power of the court to set aside an order or judgment for fraud, mistake, irregularity, or illegality, is unquestioned. * The court remark, in the case last cited, that a vested interest in a judgment, is subject to this liability. Clearly, these appellants have no more than a vested interest in the costs they have secured. The statute under which this taxation was made, says the costs, charges and expenses incident to the proceedings, “ shall be taxed and certified as to the amount, by any judge of a court of record.” † [583] These few words prescribe no rule of practice, and, undoubtedly, leave the judge at liberty to proceed ex parte, or upon such notice to the tax- payers, or others, as he may deem proper. In most cases of the taxation of costs in actions, there is first a taxation ex parte, and afterward a retaxation upon notice. After a taxation under this statute, whether there shall be a retaxation, and objections considered, is, even in the absence of any suggestion of imposition, clearly a matter within the discretion of the court or judge. As in the first instance the judge had the right, in his discretion, to hear the interested tax-payer upon this taxation, just so clearly has he or the court the right to hear him when he asks for a retaxation, to the end that his undenied allegations of fraud and imposition may be considered. This is the extent of the standing accorded to Mr. Olcott; and, under the circumstances of this case, wisely accorded to him. Whether the appellants can retain the money they have obtained, is a question that may be safely reserved until it is directly presented. The order appealed from should be affirmed, with ten dollars costs against the individual appellants. Present — Bockes, Landos and Countryman, JJ. Order affirmed, with ten dollars costs against individual appellants. Footnotes [*] Baldwin v. Mayor, 2 Keyes, 387; People v. Mayor, 11 Abb., 66; Sharp v. Mayor, 9 id., 426; Outwater v. Mayor, 18 How., 572, 576; Matter of Mayor, 49 N. Y., 150. [†] Amended Charter, title 7, § 1.