15 How. Pr. 110 | N.Y. Sup. Ct. | 1857
Whatever may be thought as to the other questions in the case, there can be no doubt the plaintiffs are entitled to all the disbursements which have been incurred by them, in consequence of the numerous appearances put in by the defendants, and the multiplied proceedings which have necessarily resulted.
Mor do I doubt that the expense of printing the case and points, may properly be included in the costs. The 30th rule of this court requires that the cases and points, and all other papers furnished to the court at a general term, in calendar causes, shall be printed. Enumerated' motions include among others, by rule 27, “ issues of law.” By rule 28, these are to be noticed for the first day of term, by either party. By rule 34, notes of issue in such causes, are to be filed, and a cal endar made up and printed by the clerk, for the use of the court. By rule 28, the papers to be furnished on such motion, shall be a copy of the pleadings, when the question arises on the pleadings, or any part thereof, or of such parts only as relate to the question raised by the demurrer.
This rule does, indeed, specify that the papers to be furnished, shall be furnished by the party demurring, in case of demurrer. But this portion of the rule took its present form before the provisions of the Code were enacted, (§§ 252, 255,) which require that the trial of issues of law, be had at the circuit court or special term. Since these provisions, no “ issues
The next question which arises is, whether the plaintiffs can have a several bill of costs against each defendant, or set of defendants, appearing separately, and raising by demurrer a distinct issue—or only a single bill of costs, against all the defendants. The first position is urged by the plaintiffs; the other by the defendants. The point is not free from difficulty; the claims of each party are apparently sustained by some of the authorities.
It will hardly be denied, that each defendant who had a separate interest to be defended, and who appeared severally by an attorney, not connected in business with the attorneys of the other defendants, and in the absence of circumstances indicating any oppressive or unfair design in severing the defences, would, if finally successful, be entitled to the costs of his separate defence. The rule is too well settled to admit of dispute. (6 Hill, 267.) It does not extend so far, however, as to give one attorney, who appeared for three defendants and put in three several demurrers, one for each of them, but all three in the same precise form, three separate bills of costs. That was claimed by one of the attorneys in this case, in regard to his costs at the special term, but the claim is clearly untenable.
The plaintiffs claim that the converse of the main proposition is true; and that where the defendant would recover separate bills of costs if successful, they shall pay separate costs, if unsuccessful.
In Comstock agt. Halleck, (4 Sandf. S. C. R. 671,) two defendants put in separate answers, but by the same attorney, to which the plaintiff demurred. The demurrers were heard at
In Everson agt. Gehrman, (2 Abbott, 413,) three of the defendants joined in an appeal from the special to the general term. The notice of appeal was signed by three different attorneys, and was of one appeal. The respondent’s attorney was obliged to give notice to each of the attorneys, and although there was but one set of papers, one argument, and one judgment, either at the special or the general term, he claimed three separate and full bills of costs. Mr. Justice Whiting held, that he was entitled to but one bill of costs.
In Buell agt. Gay, (13 How. Pr. R. 31,) Judge Harris reviewed the decision in Comstock agt. Halleck, and said, that in his opinion, it could not be defended ; that it gave to the plaintiff what the law had not awarded to him.
I am compelled to say that the positions laid down in this opinion, commend themselves to my judgment, in preference to those of Comstock agt. Halleck. They accord much better both with the language and the principles of the present statutes on the subject of costs. They accord, too, with what is stated in Freiot agt. Adams, (5 How. Pr. 138,) to be the well settled rule of the former practice that but a single bill of costs can be taxed in the same action in favor of the same attorney.
I see nothing in the present statutes indicating a design to change this rule, although it is manifest that it is now less reasonable and just, than it was when the attorney for the successful party made up his bill of costs by charging for specific services, and was thus enabled to obtain compensation for most, if not all the additional labors, imposed by the defendants appearing and pleading severally. The principle of the present system of costs, is not to make the statutory costs the
I therefore conclude that the pláintififs are only entitled to a single bill of costs, against all the defendants, if the action proceeds against all of them. It is probable, as was suggested at the argument, that this will prove a very inadequate compensation to the successful attorneys, and will be far less than the attorneys for the defendants had claimed on the decision below, and would have been entitled to, if they had succeeded on the appeal. But for this inadequacy of compensation, the court are in no manner responsible. We are to administer the statute as to costs, as we find it. If it needs any amendment, in order to subserve the purposes of justice, a different tribunal must be applied to.
It must not be overlooked, however, on this point, that there was but one trial, and a single decision in the court below, but one appeal, one argument on it, and one decision and order of the appellate court. And though here the costs, if taxed severally against each defendant who has raised a separate issue, might be a just compensation for what the court sees to have been the labors of conducting this cause, the same might not be true in other cases; and the practice, if adopted, might lead to great abuses, and might become very oppressive in its operation.
The next question in this case, relates to the amount of costs which the appellants can recover on their appeal, whether
Obviously, the first-mentioned rate of costs cannot be allowed. This is an appeal in one of “ the cases mentioned in section three hundred and forty-nine. ” It is, therefore, by sub. 5, of § 307, expressly excluded from the class of cases, in which the two items of $15 and $30 can be allowed. The plaintiffs when they appealed, clearly intended to appeal in the manner provided by § 349. That is obvious from their notice of appeal. They succeeded in defeating the motions to dismiss their appeal, at the general term, on the precise ground that they had so appealed. Thej^ cannot now claim a rate of costs, from the benefit of which all are excluded by the plain words of the statute, who appeal as they did, and intended to do.
Can the costs of a motion be allowed here, under § 315 ? I think not. It was well said in Thomas agt. Clark, (5 How. Pr. R. 375,) that the motions for which that section was designed to provide, were the collateral applications to the court, such as to vacate or set aside some proceeding, or for special relief, and which were not in the direct and regular progress of the suit. The history of the prior legislation on that subject, which is that given by the learned judge, seems to warrant the conclusion that § 315 of the Code should have the same interpretation as if it had provided that costs might be allowed on special motions. It may be added, too, that § 315 seems intended to cover a class of proceedings which is not mentioned and provided for in any previous section of that title. (And see Ellsworth agt. Gooding, 8 How. Pr. R. 1.)
But it may well be doubted whether this appeal was in any sense a motion, within the meaning of the Code, (§§ 400, 401.) The demurrers were to the whole complaint. When the general term decided the questions presented by these demurrers, not only was the erroneous order of the special term reversed,
The 252d section of the Code defines a trial to be, “ the judicial examination of the issues between the parties, whether they be issues of law or of fact.” All the provisions of the chapter of the Code, of which this section is a part, do now contemplate, certainly, as § 255 provides, that this “ trial,” be had at the circuit or special term. And the provisions of the Code as first enacted, were in substance the same. (Laws of 1848, p. 536, § 210.) But by this section as it was amended, and became section 255 of the Code of 1849, issues of law were only to be tried “ in the first instance, at a circuit court or special term.” By the same section as amended in 1851, “ issues of law must be tried at a general term, unless the court order the trial to be had at a special term.”
In the amendment of 1852, the section took its present shape. But prior to that time, whether the trial of issues of law was had at the general or special term, the fee for it was that fixed by § 307.
It was thought more consistent, however, to require all cases to be first heard and decided by a single judge, and to make the general term more strictly a court of review and appeal. While this principle was taking form, and becoming a part of our growing judicial system, the amendments to section 349, allowed the order of the single judge determining an issue of law, to be reviewed more speedily and with less formality, than was required for the review of a judgment when formally entered up. But no change was made in the provisions of the section which fixed the items of costs. The subject was either overlooked, or more probably it was supposed that the 307th section covered the case, so that no change was necessary. The doubt, for which the change in §§ 255 and 349, without a corresponding change in section 307, gave some room, was very early presented in Van Schaick agt. Winne, (8 How.
This decision has remained, so far as my examinations show, wholly unquestioned. Although the case of Ellsworth agt. Gooding, (8 How. Pr. R. 1,) in which the same learned judge has held, that on a motion for a new trial on a case or bill of exceptions, the prevailing party was entitled to the same trial fee, as often as the cause is brought to a hearing upon the merits, has been once questioned. (See Potsdam & Watertown R. R. Co. agt. Jacobs, 10 How. 453, per Hubbard, J.) The reasoning in that case, shows clearly that distinctions exist between the two cases in 8 Howard. And the views expressed by Mr. Justice Hubbard, may be correct, without impugning the weight of Van Schaick agt. Winne, as an authority.
It was probably the doubt growing out of these adverse decisions of Judge's Harris and Hubbard, which led to the amendment made at the last session, in sub. 5 of § 307 of the Code, by which, costs as on an appeal from a judgment are now given for the • proceedings which were supposed by Judge Hubbard, to be unprovided for in the previous fee bill. It is a circumstance not undeserving of mention, that when the legislature was endeavoring to remove the doubt raised by the
I therefore conclude, that the plaintiffs are entitled to recover for the appeal in this case, the proper costs of the trial of an issue of law. These costs, as well as all the costs of the cause, are to be regulated by the statute, since the late amendments.
In the bill of costs which the plaintiffs have submitted, are contained the following items for services, viz:
Proceedings before notice of trial, $15.00 Subsequent proceedings before trial, 10.00 Three term fees, 30.00 Trial of issue of law, 15.00 On appeal before argument, 15.00 For argument of appeal. 30.00
The first item would be properly included in the bill, if it was made up for the purpose of entering judgment final for plaintiffs. But it is not a part of the costs now to be paid by defendants, for amending. For none of the proceedings to which it relates will be vacated by the operation of the order authorizing the amendment. (Van Valkenburgh agt. Van Schaick, 8 How. 271.) The next charge is to be paid upon amending. (See 8 Id. 273; 6 Id. 413 ; 5 Id. 336 ; 2 Abbott, 360.)
The third charge is proper, if the case was on the calendar, as specified in sub. 7 of § 307. The trial fee at the special term, is, of course, properly charged. The items of $15 and $30, for the appeal, before argument and for the argument, must be disallowed. And in their place, must be included the charges relating to the trial of the issue of law. Besides the trial fee, and the term fees of the terms, if any, at which the cause was necessarily on the calendar, and was not reached or postponed, we think there may also be included ten dollars, under sub. 3 of § 307, for all proceedings subsequent to no
Only one other suggestion made at the argument requires remark. It was said by the plaintiffs, that if but a single bill of costs was allowed against all the defendants, there would be great difficulty in apportioning it among the defendants, so as to show what part of the bill each party desiring to answer, must pay.
There may be some confusion to arise on this point; but it is not properly presented here, and cannot now be disposed of. One thing is clear. The plaintiffs cannot be compelled to take part'in any such apportionment. If the whole of the costs as adjusted are not paid to them within the period fixed for that purpose, the privilege of answering will be lost, and they will be entitled to final judgment. It behooves every defendant desirous of answering, to see that all the costs are duly paid. If any of them 'fails to pay a proportion of the bill as adjusted, and throws the burden upon the others, the injustice must be corrected between the defendants by some application or proceeding adapted to the case. The difficulties which may then arise, cannot affect the present case, or be thrown upon the plaintiffs.
An order must be entered, referring it to the clerk of Kings county, to adjust the costs of the plaintiffs, in conformity with the views above expressed.