12 Wend. 273 | N.Y. Sup. Ct. | 1835
By the Court,
The question is, can the sessions, in a case like this, allow more than taxable costs ? There is a marked distinction between phraseology of the revised statutes on this subject, and the law as it heretofore existed. Formerly it was the duty of the general sessions to award to the party in whose favor an appeal of this kind was determined, “ such costs and charges as the said justices in their discretion shall deem reasonable,” to be paid by the losing party. 1 R. L. 310, § 11. Now the language of the statute is, “The court shall award costs to the party in whose favor any such appeal shall be determined. 1 R. S. 649, § 37. This shows an intent to change the law. All discretion is taken away, and nothing can be taxed but what is strictly and. technically costs. Consequently the allowance of $20 for a counsel fee was unauthorized. I think, however, there is no force in the objection to the allowance of witnesses’fees. The provision in the statute to which reference has been made, 1 R. S. 647, § 27, does not necessarily deprive witnesses of their right to fees; such was not its object. The intent of the legislature was to provide for the compulsory attendance of witnesses, an appeal not being properly a cause pending in court; and without some legislative enactment, there would have been no authority to issue process for the attendance of witnesses. Besides, it is undeniable that the legislature intended to give costs to the prevailing party; and if witnesses’ fees as well as counsel fees are stricken out, the provision as to costs would be useless. My opinion therefore is, that the charge of $20 for counsel fees ought to be stricken out, and that ,the residue of the charges are proper.
A similar question was some time since submitted to this court by the judges of the county courts of Otsego, in which Mr. Justice Nelson delivered an opinion substantially the same as the above. He observed: “ The lan. guage of the revised statutes is certainly more guarded and restricted on this subject than that found in the former statute, and I am of opinion that the