5 How. Pr. 336 | N.Y. Sup. Ct. | 1851
This is a motion for a retaxation of costs in the nature of an appeal from an adjustment thereof made by the clerk of Montgomery county, under § 311 of the Code. This adjustment or taxation was made by the clerk, upon notice to the plaintiffs from the defendants, on the 1st day of November last. The costs were allowed to the defendants, who severally demurred to the complaint; the demurrers being allowed, and the plaintiffs having leave to amend on payment of the costs of the demurrers, within twenty days. The plaintiffs paid the costs voluntarily within the time. Since the taxation, and indeed, since the payment, there have been several special terms, at which this motion might have been made.
II. The costs were correctly adjusted. The costs contemplated by the rule were those incidental to the demurrer. They embrace proceedings before notice of trial ($5-00); that-is the drawing and the copies of the demurrer. 2. The subsequent proceedings before trial ($7'00); this is what was formerly comprised under the head of brief and points. 3. For the trial of the issue of law ($12‘00). This, under the former practice, was covered by the counsel fee on argument. In some cases it would be more in some less than the corresponding charge under the Code.
III. The plaintiffs should have moved at an earlier 'day, or be able to give some excuse for the delay. They should have moved before payment of the money. They paid without objection.
The motion must be denied with seven dollars costs to each of the defendants, Mitchell and Reed.
