Magnin v. Dinsmore

47 How. Pr. 11 | The Superior Court of New York City | 1873

Sedgwick, J.

The plaintiffs have recovered a judgment for more than fifty dollars, and are, therefore, the prevailing party upon the judgment declared- by section 303 to be entitled to the costs. The costs are allowed, of course, to them; section 304. Section 307 fixes the amount of the costs, by giving different sums for the different stages of the proceedings in the action. Under section 309, the plaintiffs would further be entitled (as this is conceded to be a diffiéult and extraordinary case) to an allowance not exceeding five per cent, upon the amount of the recovery. This allowance is not an indemnity for the expenses attending a particular stage of the action, such as proceedings before notice of trial, fifteen dollars or twenty-five- dollars, or for proceedings after notice of trial, fifteen dollars. It is given at the time when the party is entitled to enter judgment for an indemnity for the expenses of the action, as a whole, from first to last. We have stated above the general rule. Because, however, the defendant served an offer for judgment, as favorable to the plaintiffs as the judgment they are now entitled to enter, they, by section 385, cannot “ recover costs, but must pay the defendant’s costs from the time of the offer.” As we think that an allowance under section 309. is not given for a part of the action, it follows that defendant’s costs from the time of the offer, say before notice of trial or after, do not, within the meaning of this section, include an allowance.

There is no way of apportioning it under the Oode as it stands.

If an allowance were ordered to defendant, it would have to be such a one as the Oode authorized to be given to him from the time of his offer. As I do not think the Code has made such a provision, the motion for the additional allowance to the defendant must be denied, but without costs.