Majority
p. 673Waring vs. Acker.
Headnote
The statute allowing double or increased costs to officers, &c. (2 R. S. 512,2d ed.) extends as well to replevin as to other actions.The costs, however, qf a special motion in the progress of the cause, are not within the provision.
Double costs. In an action of replevin, brought against ' the defendant for taking certain goods on execution as sheriff of the city and county of New-York, the costs of a special motion, made after verdict for the defendant, but pending a case, were ordered to be paid by the plaintiff. The taxing officer allowed the defendant the usual costs, with one half in addition. (3 R. & 617, § 34.)
N. F. Waring, for the plaintiff,
moved for a re-taxation, and insisted, first, that an officer was not entitled to double costs in the action of replevin ; and second, that he was not entitled to such costs on a special motion. On the first point, he cited Crummer v. Huff, ( 1 Wend. 34 .)
A. L. Brown, contra.
The case cited was decided on the old statute which gave double costs to an officer in certain specified actions, among which replevin was not included; but the present statute gives increased costs to an officer without any reference to the form of the action. (2 R. S. 617, § 24.) Such costs may now be recovered in replevin as well as in other actions.
But the plaintiff must prevail on the other point. The
p. 674
statute only gives increased costs, in cases where judgment is rendered for the officer upon verdict, demurrer, nonsuit, non-pros, or discontinuance. It does not extend to costs upon special motions in the progress of the cause. (Rider v. Hubbell, 4 Wendell, 201.) From that case and others there cited, it will be seen, that double costs are only allowed in the cases particularly specified in the. statute.
Motion granted.