Bentley v. City of Amsterdam

OPINION OF THE COURT John A. Simone, Jr., J. The defendant, Greenhill Cemetery Association, following the dismissal of the plaintiff’s complaint submitted a bill of costs which were taxed and a judgment was entered thereon. Included as a disbursement of the defendant was an item amounting to $3,437.09 representing the cost of a survey of a portion of the lands owned by the defendant, Greenhill Cemetery Association. The plaintiff by way of motion objects to the inclusion of this item as a disbursement of the defendant in the bill of costs and judgment. The defendant on the other hand maintains that the survey was prepared for the purpose of cross-examining plaintiff’s expert at the trial. However, the plaintiff’s complaint was dismissed at the close of his case and the defendant did not have need for such survey nor was such survey introduced into evidence at the trial. [500] Should this court allow the amount of $3,437.09 to remain in the bill of costs and judgment as a proper disbursement? In Mark v City of Buffalo (87 NY 184), the Court of Appeals affirmed the disallowance of the sum of over $2,000 for certain plans and measurements which had been taxed as necessary disbursements. In Jenkins v Marsh (136 Misc 291), the Supreme Court of Monroe County disallowed the taxation as costs of an item for a map which was not introduced into evidence but was attached to a brief of one of the defendants. Since the survey in question was not used in court as part of this proceeding, the court answers the question before it in the negative and will disallow said item as a necessary disbursement. The motion of the plaintiff is granted, with costs of $50. The judgment should be corrected and amended accordingly.