Majority
p. 214DOVALE v. ACKERMAN. N. Y. Supreme Court, First District, Chambers ; March, 1890.
Headnote
Costs paid as a condition to amendment.] Where plaintiff as a condition of being allowed to amend his complaint before trial, is required to pay costs up to the time of the application to the defendant, he must be allowed to tax such items, if he afterwards succeed in obtaining a judgment.Motion for re-taxation of costs.
p. 215
Plaintiff, as a condition of being allowed to amend his complaint, was required to pay to the defendants all the costs of the action from the commencement of the same down to the time of the amendment, amounting to $85. Plaintiff obtained a judgment, and proceeded to tax his costs. The amount paid by him to the defendant as a condition to amendment, was disallowed by the clerk. Plaintiff excepted to such taxation and appealed to the court, claiming that if such disallowance were made, defendant would really collect such costs twice.
James M. Lyddy, plaintiff’s attorney, for the motion.
Coudert Brothers, defendants’ attorneys, opposed.
If there was no dispute as to items of costs the plaintiff, having succeeded in the action, would have been entitled to costs, as of course. As a condition of being allowed to amend, plaintiff' paid the term fees, etc., to defendants. Is it not clear that if not allowed to tax these now, plaintiff has paid double costs for the amendment, viz., those actually paid to defendant, and those which the clerk has decided cannot be taxed against defendant, because heretofore paid to the latter ? The motion to re-tax granted, and Ihe exceptions on appeal from the clerk’s taxation, allowed.