60 How. Pr. 288 | N.Y. Sup. Ct. | 1881
This is a motion made to set aside or review taxation of costs. When the demurrer was decided, costs
The items for copies of documents “cannot be allowed without an affidavit that it or they were actually and necessarily used or obtained for use. ” Such an affidavit is required by section 3267 of the Code of Civil Procedure. Hone such was furnished and the taxation was therefore irregular, and as the practice is new under the section quoted, it is proper that the parties should be again heard by the clerk upon such papers as they may submit upon a fresh taxation. Upon the taxation to be had, the clerk will tax costs before notice, after notice, and for trial of an issue of law. The question made by the defendants as to the costs before notice and after notice of trial must be ruled against the defendant. The plaintiff drew the demurrer and served it and noticed the argument thereof. For such services he is, by the well settled practice, entitled to the costs before and after notice of trial, as well as twenty dollars for a trial of an issue of law (“Anon.,” 3 Sanford, 756; Van Valkenburgh agt. Van Schenck, 8 How., 272; Crary agt. Norwood, 5 Abbott, 220).
Upon the papers now produced upon this motion, it seems to be apparent that the case is one where no application was necessary to the court for judgment upon the complaint if no answer had been served (Sec. 420 of Code). Besides, the summons which is produced seems'to have a manuscript indorsement on it of the words “ summons and complaint.” Thus it would seem it was a case where the plaintiff should have fifteen dollars instead of twenty-five, as stated in the bills of costs
Besides, the plaintiff made no indorsement upon the summons, as required" by section 419 Code of Civil Procedure; therefore, as the papers now appear, the plaintiff was only enti
