Brace v. Beatty — 7 Abb. Pr. 445

Majority

p. 445

BRACE a. BEATTY.

Supreme Court, Sixth District;

General Term, November, 1858.

Headnote

Costs.—Right to Allowance.—Attachment Suit.

The plaintiff is not entitled, under section 309 of the Code (as amended, 1857?), to charge an allowance, on tender of debt and costs, made before judgment.^[1]

Appeal from an order made at chambers upon a question of costs. (See the decision reported, 5 Ante, 221.)

L. Bwrditt, for the appellant.

Brown & lathrop, for the respondent.

—I think the order appealed from in this case should be reversed. The suit was settled before trial, and before judgment; and the plaintiff was not entitled to the additional allowance given by section 308 of the Code.

The additional allowance given by that section is only given upon the recovery of a judgment, and it should be borne in mind that these allowances were given by an amendment of that section, and of section 309, in 1857. This furnishes a very strong argument against giving the construction to section 322 which was placed upon it by my brother Balcom, in allowing to the plaintiff this extra allowance where the suit was settled.

When section 322 was enacted, the plaintiff only recovered what sections 304 and 307 gave him, and it was not increased by the additional allowance now given by section 308. But I do not see how section 322 can be said in any manner to include the increased costs given by section 308. The section is very plain to my mind. It is, that upon the settlement before judgment of any action mentioned in section 304, no greater

p. 446

sum shall be demanded from the defendant as costs than at the rates prescribed by that section—not at the rates prescribed by that section, as increased by section 308. Section 322 seems to limit the costs to the rates prescribed by section 304. This cannot be, for section 304 does not prescribe any rates. It is undoubtedly necessary to embrace section 307 in this reference, as that section fixes the rates and prescribes the items. Upon no just principle of construction, however, can section 322 be made to include the extra allowance given by section 308 ; and besides, section 308 only gives to the plaintiff these extra allowances upon the recovery of a judgment by him. Bow these extra allowances are given for the entire services in conducting the cause through to judgment. And I agree with my brother Balcom that these services cannot be divided in awarding this extra allowance ; and for that very reason, the plaintiff is not entitled to them until he has conducted his cause through to judgment. And the very language of section 308 limits the plaintiff’s right to them to costs where he recovers a judgment; and it is always a dangerous exercise of judicial authority for a court to interpret a statute contrary to the express words of the statute. (9 Broom’s Leg. Max., 268 ; Smith on Stai. Constr., 651, § 505.) Bow, when the Legislature have said that the plaintiff shall be entitled to these additional allowances, upon the recovery of a judgment, our courts have no right to say that they intended to give them to him upon the issuing and service of a summons-on the suit, if the suit is settled at that stage, or upon issuing an attachment.

The order appealed from must be reversed, with $10 costs; and the case as reported in 5 Abbotts’ Practice Reports, 221, is not to be followed, and in this opinion all of my brethren concur.

Footnotes

† † Present, Gray, Mason, Baloom, and Campbell, JJ.