Duff v. Wardell — 10 Abb. Pr. 84

Majority

p. 84

DUFF against WARDELL.

Supreme Court, Second Department, Second District;

General Term, December, 1870.

Headnote

Costs.—Exceptions Heard in First Instance at General Term.

Where a verdict is had at the circuit, and the court directs the exceptions to be heard in the first instance at general term, if the gen eral term direct judgment for the plaintiff, he is entitled to costs of the general term, as well as costs for previous proceedings in the cause, even though the verdict be reduced.

It makes no difference that the defendant is sued as executor.

Motion to direct the clerk to tax costs.

This action was brought to recover damages for a trespass alleged to have been committed by defendant, in carrying away plaintiff’s goods. It was tried before Mr. Justice Gilbert, in October, 1868, and a verdict rendered for plaintiff for two hundred and seventy-five dollars. Exceptions having been taken, the court directed the entry of judgment to be suspended, and the exceptions to be heard in the first instance at the gen

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eral term. At the hearing there in December, 1869, the court were of the opinion that the verdict should be reduced by the sum of one hundred dollars, and accordingly directed judgment for one hundred and seventy-five dollars, with costs.

The plaintiff noticed the costs for adjustment, and the clerk refused to tax costs of hearing before the general term because the court had there reduced the verdict.

Mr. Sandford, for the plaintiff, now moved for an order directing the clerk to tax such costs.

Lewis Johnston, opposed, objected that the motion should properly have been made at special term.

The application is properly made here, for it is in reference to the taxation of costs awarded by the general term.

Mr. Sandford insisted that the plaintiff was entitled to costs of the general term, because he was compelled to go there in order to gain his judgment; and the verdict, although reduced, still was for a sufficient amount to carry costs.

Mr. Johnston, for the defendant, argued that, as the defendant had had the burden of making a case, and the costs were in the discretion of the court, under section 303 of the Code, and there had been a diversity of opinion at the general term, the presiding justice having dissented, and the defendant being an executor, costs should not be awarded against him.

In this case the plaintiff is entitled to the costs he asks for as a matter of right. It should be so, for the argu

p. 86

ment at the general term was but a portion of the trial. The court did not finish the cause at the circuit, but, important questions of law arising, they were reserved to be considered by the court at general term, and the general term, after hearing the exceptions, first ordered judgment for the plaintiff, and with costs.

Where the cause is not disposed of at the circuit, and it is necessary to go before the general term in order to obtain judgment on the verdict, the prevailing party is entitled to the costs of that hearing.

It can make no difference that the defendant is sued as executor, for that ought not to exempt him from the operation of this rule.

Ordered accordingly.