Sherwood v. Travelers Insurance — 12 Daly (N.Y.) 137

Majority

p. 137

Mary Sherwood et al., Respondents, against The Travelers Insurance Company of Hartford, Appellant.

(Decided May 18th, 1883.)

Headnote

Costs paid to the justice of a district court in the city of New York or his clerk, to perfect an appeal from such court, belong to and are to be paid over to the party prevailing in the district court; and the appellant, after succeeding on the appeal, cannot compel the justice or clerk to refund to him the costs paid.

p. 138

Appeal from an order of this court directing a clerk of a district court in the city of New York to pay to defendant costs paid to the clerk upon an appeal by defendant from a judgment of the district court.

Plaintiffs recovered a judgment in the district court on January 5th, 1882, against defendant for $60, and $17.50 costs. Prior to January 20th, 1882, defendant appealed to the General Term of this court, serving notice of, appeal and giving the undertaking prescribed to stay execution. Defendant then paid to the clerk of the district court the costs and fee for a return. The judgment was reversed with costs. The appellant thereafter demanded the $17.50 costs, which had been paid to the clerk when the appeal was taken, and on default of payment moved in this court at chambers for an order directing the clerk to pay the money. On the motion it appeared that the clerk had paid the amount to plaintiffs’ attorney, January 28th, 1882. The court granted the motion; and from the order granting the motion the clerk appealed.

Charles C. Bigelow, appellant, in person.

F. FI. Mather, for respondents.

I have been unable to find any adjudication bearing upon the question. In Ex parte Stephens (6 Cowen 68), and The People ex rel. Lincoln v. The Saratoga Common Pleas ( 1 Wend. 282 ), the court go no further than to decide that the method of appeal must be strictly followed, and payment of costs to the party instead of the justice Avas not a compliance Avith the statute. The appellant, if costs are awarded him on the appeal, may tax, among other items, the costs and fee paid to the justice upon taking the appeal (Code Civ. Pro. § 3060). The authority to include these costs among the disbursements on appeal seems to contemplate a prior disposition of them by the justice or his clerk. The only one possible is a payment to the successful

p. 139

party in the district court, as they certainly do not belong to either of those officials, and, if to rest on deposit, no necessity existed for' such a provision. I do not think the giving of an undertaking affects the question, for its purpose does not reach beyond a stay of execution (Code Civ. Pro. § 3050). Neither can these costs fall within section 3058. They are not property lost by means of the erroneous judgment, because not taken from the party-under the judgment, but paid as one of the steps needful to perfect his appeal.

The order should be reversed, with costs and disbursements.

Van Brunt and Van Hoesen, JJ., concurred.

Order reversed, with costs.

Cases cited

People v. Saratoga Common Pleas 1 Wend. 282 N.Y. Sup. Ct. p. 138