8 Paige Ch. 450 | New York Court of Chancery | 1840
As the person against whom the commission issued has been found to have been a lunatic
This court, however, may in its discretion allow costs for opposing the commission 5 where the fact of the lunacy is so much a matter of doubt that the chancellor would have directed and sanctioned such opposition, if an application had been made to him in the first instance. (In Re Knight, Shelf, on Lun. 103.) In this case it appears from the petition, that there were reasonable grounds for believing that the party proceeded against was not a lunatic; and the committee do not appear to oppose this application, as it was their duty to do if they believed the allegations in the petition to be incorrect. The petitioner’s taxable costs will therefore be allowed and paid out of the estate. But the court in such a case does not allow extra charges beyond the amount fixed by the fee bill; as such charges must rest in contract merely. The first item in this bill is not taxable, according to the decision of this court in Ex parte Johnson, (2 Paige’s Rep. 282.) The two last items are also extra charges, and therefore not taxable. The third item of the bill is also overcharged, as only one engrossment is taxable. The copies of the subpoena for the witnesses are not engrossed. (2 Paige’s Rep. 460.) The whole amount of taxable items in the bill is $9,32 ; which sum the committee of the lunatic are directed to pay out of the estate. But as the petitioner claimed three times as much as he had a right to receive, under this decision, he cannot have any allowance for the costs of the application.
Order accordingly.
