Majority
p. 20Brainard against Phillips. [ 2 Cowen’s Rep. 440, S. C. by the title of Philips v. Brainard. ]
Headnote
Justice’s reíari taxedf on affirmance of judgment, in the defendant’s bffi Of costs.On certiorari to a Justice’s Court, the judgment was affirmed; and the defendant had procured to be taxed in his bjjj of costs, the drawing and copying the return of the . ’ v ” ^ 5 , , justice; and a motion for re-taxation was moved for upon this groundj among others.
The general practice has been to tax this item in the defendant’s bill. As to this,
Motion denied.
p. 21
A motion had been made by the defendant to set aside the certiorari for irregularity, but denied without costs, which were also taxed as the defendant’s general costs in the cause; and it was insisted that these were properly taxable, like the costs of a motion' to change the venue, for a commission, reference, dec. But,
Where amo. tion to set aside a certiorari is denied without costs, these are not taxable as a part of the defendant’s general costs, upon affirmance.
They do not stand upon the same ground. The cases mentioned are necessary steps in the ordinary course of the cause. Here was a motion improperly made. It was, to be sure, denied without costs; probably under some peculiar circumstances in the case, by which our discretion as to costs was guided. These, however, were finally disposed of upon the motion. As to this,
Re-taxation ordered.
M. Brainard, for the motion.
J. A. Spencer, contra.