Tracy v. Stone, 5 How. Pr. 104

Tracy v. Stone

5 How. Pr. 104 | N.Y. Sup. Ct. | 1850

Parker, Justice.

The clerk was wrong in allowing two bills of costs. Where the defendants appear by the same attorney, there can be but one bill of costs. Such was the rule under the late practice; though formerly, when the defendants necessarily pleaded separately and where different witnesses were needed, the specific allowances for such additional pleadings and for such different witnesses were taxable in the bill of costs. But under our present system, there being no specific compensation for an additional answer, no charge could be made for it. The defendants in this case could have but one bill of costs. In that they could include fees for all the witnesses who attended for either defendant and every other item allowed by the code, for an expense that either defendant had separately and necessarily incurred. But there could be but one set of charges for those services which are performed by the attorney or counsel. The witnesses were entitled to but single fees, though they may have attended to prove different facts for each defendant; and the disbursements could not be twice charged. It had been urged that the adjustment made by the clerk in this case was proper, because *105the compensation under the Code now belongs to the party and not to the attorney; that therefore the former practice was changed and each one of the successful parties defendant was entitled to a full and exclusive bill of costs. This reasoning would give costs to each of the successful defendants, as well where they unite, as where they separate, in their defence. In a suit against twenty persons, defending by one attorney and uniting in one answer, it would give to each defendant a separate and full bill of costs. Such a construction could not have been intended and can not be tolerated.

The statute now gives “ to the prevailing partyupon the judgment, certain sums by way of indemnity for his expenses in the action” (Code § 303), and prescribes what such allowances shall be. It can not be supposed the defendants will pay their attorney double fees for attending circuit when the cause was not reached, or for any other service, because there are two defendants. Such charges are not necessary to their “ indemnity.”

There must be a readjustment of the costs before the clerk and it can best be done by making out a new bill and serving copy and notice of adjustment. Motion granted without costs.