Goodridge v. Connor

66 How. Pr. 143 | City of New York Municipal Court | 1883

McAdam, J.

The defendant appealed to the court of common pleas from an order made by the general term of the city court. The common pleas dismissed the appeal “ with costs,” and the clerk of the city court taxed the plaintiff’s costs at “ ten dollars,” besides disbursements. The plaintiff appeals from the taxation, claiming that he should have been allowed the full statutory costs, the same as on an appeal from a judgment. The,plaintiff is correct in his interpretation of the statute. While it is true that upon an appeal taken from certain orders to the general term of the city court but ten dollars costs and the disbursements are allowable, there is no distinction made in the statute regulating appeals from the city court to the common pleas as to whether the appeal be from an order or a judgment. There is but one fee bill in such a case, and it is applicable alike to all appeals. The provision in reference to costs is general. It allows: “ Upon an appeal to the court of common pleas from the city court, before argument, twenty dollars; for argument, forty dollars; for each general term, not exceeding five, at which the canse is necessarily on the calendar, excluding the term, at which it is argued or otherwise finally disposed of, ten dollars ” (Code, sec. 3251, sub. 4), and it matters not whether the appeal be dismissed or otherwise disposed of, the same costs are taxable (White agt. Anthony, 23 N. Y., 164). This is the rule applicable to appeals from the common pleas to the court of appeals (White agt. Anthony, supra; Brown agt. Leigh, 50 N. Y., 427), wherein the language of the statute in regard to costs is similar. The practice upon appeals from the city court to the common pleas assimilates to that upon appeals from the latter court to the court of appeals, and must, as nearly as possible, be governed by the same rules. The clerk’s taxation wifi, therefore be reversed, with directions to retax the costs in accordance with the provisions of the Code before referred to.