5 Paige Ch. 526 | New York Court of Chancery | 1836
As the costs were taxed ex parte, and without objection, I cannot, on this application, review the decision of the taxing officer as to any of the items allowed. The only question, therefore, which is proper for consideration here, is as to the regularity of the notice of the taxation. The counsel for the defendant supposes that the 89th rule is applicable to this case; and that a notice of four days should have been given. That rule, however, only applies to notices of hearing, or of special motions or petitions to be made or presented to the court, and is not applicable to the case now under consideration. The proceedings as to the taxation of costs, in this court, do not correspond with the English practice; as no warrant is taken out to attend the vice chancellor or master on the taxation, and the original taxed
The taxation in this case, upon a notice of one day only, was irregular, and must be set aside. And the bill of costs must be retaxed, upon a notice of at least two days. But as this was an unsettled question, and the irregularity complained of was merely technical, no costs are to be allowed to either party on this motion. (See Kane v. Van Vranken and wife, 5 Paige’s Rep. 62; and Seeber v. Hess, Idem, 85.)