Klinck v. Kelly — 15 Abb. Pr. 135

Majority

p. 135

KLINCK against KELLY.

Supreme Court, First District;

Special Term, 1873.

Headnote

Double Costs.

Double costs, when allowed under the statute, are computed on the whole taxed bill, including disbursements.

In this action, which was brought by Seth H. Klinck against John Kelly, sheriff, &c., the clerk, on adjusting defendant’s costs, after a verdict in his favor, allowed to him, as “double costs,” one-half the whole

p. 136

taxed bill of costs and disbursements. There having been a new trial ordered in the action, the clerk allowed to defendant five circuit term fees, after the order for a new trial, in addition to five like term fees before the first trial.

Plaintiff appealed to the special term from this adjustment.

Orlando L. Stewart, for plaintiff,

Argued that the provisions of 3 Rev Stat., 908, § 4, in connection with the provisions of the Code as to costs, limited the allowance of double costs to the items designated as costs in the Code. Also, that under § 307 of the Code, no more than five term fees could be allowed.

J. R. Cuming, for defendant, the sheriff,

Cited as to double costs, Code, § 303 (allowing certain sums "termed costs,” but not enacting that any item previously denominated or treated as costs, should cease so to be), Roys v. Willet [MS. Opinion Bosworth, J., 1861];^[1] Jackson v. Lynch, Superior Court, 32 How.

p. 137

Pr., 93 ; Code, § 471; Bartle v. Gilman, 18 N. Y., 262 , 264, 265; Chadwick v. Brother, 4 How. Pr., 284 ; 3 Rev. Stat., 909, § 5.

Where a sheriff succeeds in Ms de- . fense, he is entitled to “ double” costs, including disbursements ; that is, to the adjusted bill of costs and disbursements, fifty per cent, more must be added. The statute as to double costs is not affected by the Code.

Subdivision 7 of section 307 of the Code allows but • five term fees, and no more. All above that number must be stricken from' the bill.