Ehright v. Shalvey

MoAdam, J. The action is for assault and false imprisonment. The defendant justified as a member of the police force of this city, and the act for which he was sued warranted this justification. He has succeeded in the action, and the clerk has refused to tax double costs in his favor; therefore he appeals from the clerk’s taxation. The provisions of the revised statutes (3 R. S. 5th ed. 908) in regard to double costs are not repealed by the code, and remain in full force (Bartle v. Gilman, 18 N. Y. 260). The statute in question (§ 4), provides that in actions against public officers appointed under the authority of this State or elected by the people, for or concerning any act done by such officer or person by virtue of his office, if judgment be rendered in their favor, such defendant shall recover the amount of his taxed costs, and one half thereof in addition. The defendant was a public officer under this statute. His duties concern the public (Henley v. Mayor, &c., 5 Bing. 91; People v. Hayes, 7 How. Pr. 248). He took an oath of office (L. 1864, ch. 403, pp. 912, 926, § 46). He was appointed under the authority of the State (Constitution, art. 10, § 2; L. 1864, ch. 403, pp. 912, et seq.). He possesses all the common law and statutory powers of a constable, except for the service of civil process (Id. § 28), and a constable is entitled to double costs (Murray v. Haskins, 4 How. Pr. 263 ; Jones v. Gray, 13 Wend. 280, et seq.; Platt v. Sherry, 7 Id. 236 ; Walker v. Burnham, 7 How. Pr. 55). The defendant was sued for an act done by virtue of his office, and he is entitled to have his costs taxed under and in accordance with the statute. The clerk is ordered to retax accordingly.