Shaw v. Dwight — 17 Abb. Pr. 18

Majority

p. 18

SHAW a. DWIGHT.

Supreme Court, First District;

General Term, December, 1863.

Headnote

Term-fees nr Court of Appeals.

There is no limit to the number of term-fees taxable for terms in which a cause has been necessarily on the calendar of the Court of Appeals.

Appeal from an order disallowing term-fees on the adjustment of costs.

This action was hy Daniel J. Shaw against Henry Dwight, Jr., and Ancel St. John. The plaintiff had jndgment which had been affirmed with costs by the Cotirt of Appeals. The cause was on the calendar of the Court of Appeals twelve terms, not reached or necessarily postponed. On appeal from the clerk’s adjustment of costs, the plaintiff was allowed to tax only five term-fees: he appealed.

Benjamin C. Thayer, for the appellant.

I. Prior to the amendment of section 307 of the Code in 1859, plaintiff would have been entitled to twelve term-fees. The amendment applies only to circuits, special and general terms.

II. The terms of the Court of Appeals are neither special nor general terms.

HI. Hnder the old system there were special and general terms, and the present system has retained these appellations. It would be as much a perversion of terms to apply these words to the Court of Appeals, as to call one of the terms of the latter a Court of Oyer and Terminer.

IY. These term-fees are given to the successful party as a matter of right, and no person’s right can be taken away unless the intent be clearly expressed by the Legislature or by necessary intendment of law.

Y. The limitation of term-fees, only applies to the circuit, special and general terms. (Adams a. Perkins, 25 How. Pr., 368 ; Glentworth a. Mount, Ante, 15.)

p. 19

Tracy, Powers & Tallmadge, for the respondents.

The question of costs presented by the appeal was recently carefully examined by Judge Bosworth, of the Superior Court, in G-lentworth a. Mount, and he came to the conclusion, that since the amendment, in 1858, of section 307 of the Code, there has been and is no limitation to the number of term-fees in the Court of Appeals, taxable under subdivision 7 of that section. A copy of his opinion^[1] having been handed to the court, I have examined it with care, and entirely agree with him. Judge Parker arrived at the same conclusion, in Adams a. Perkins ( 25 How. Pr., 368 ). The order appealed from should be .reversed, with $10 costs, and the clerk should be directed to readjust the costs, and allow the $120 for the twelve term-fees.

Barnard, J., concurred.

The opinion of the presiding judge is correct, I think, according to the legal construction of statutes; though the costs for term-fees in the Court of Appeals seem to have been lost sight of by the framers of the amendment.

* Reported, Ante, 15.