Van Hovenburgh v. Case — 4 Hill & Den. 541

Majority

p. 541

Van Hovenburgh vs. Case.

Headnote

Where proceedings instituted Under the third section of the non-imprisonment act (Sess. L. ’31, jp. 396) are dismissed, the costs, fees and expenses for which the plaintiff is liable to the defendant can in no case be taxed at a sum exceeding ten dollars.

The statute regulating the fees oí attorneys applies only to suits in courts of record; and hence, such fees are not allowable for conducting summary proceedings before particular officers. Per Nelson, Ch. J.

Taxation of costs. In July, 1842, Van Hovenburgh sued Case in this court, on a demand arising upon contract amounting to upwards of fifty dollars. After the commencement of the suit, proceedings were instituted against the defendant before the recorder of Schenectady, under the “ act to abolish imprisonment for debt” &c..; (Sess. Laws of 31, p. 396, § 3 to 10 ;) and, after a hearing before that officer, the complaint was dismissed. The defendant thereupon procured his costs to be taxed, as follows : Attorney’s fees, $10. Witnesses’ fees and fees for serving subpoena, $17,47. Recorder’s fees, $24,37. The plaintiff now moved for a re-taxation-.

Cochran <$• Rathbun, for the motion.

P. Potter, contra.

By the Court,

The non-imprisonment act declares that, where the complaint is dismissed, the party-making it “ shall be liable for all fees to officers, and for all costs and expenses which the defendant shall have incurred.” (Sess. Laws of'31, p. 401, § 22; 1 R. S. 812, § 22, 2d ed.) By a subsequent act (Sess. Larks of ’38$ p. 97, § 3) it is provided that, a the. costs, fees and ekpentees &c. shall in all cases be made out by stating the particular charges, and be taxed by the officer before whom such proceedings shall be had; but no counsel, retaining or trial fee, shall be allowed either party;

p. 542

nor shall the costs in any case [to] be taxed against the opposite party exceed the sum of ten dollars where the demand claimed by the plaintiff shall exceed fifty dollars, nor more than five dollars where the demand claimed by the plaintiff shall be fifty dollars or less.” Upon a fair construction of this statute, I am satisfied that the aggregate amount of costs and expenses taxable against the complainant cannot exceed ten dollars.

It seems to be supposed that the amount thus limited was intended to be confined to the fees of attorneys. But I am not aware that attorneys’ fees, in a case like the present, can be taxed, or that there is any law authorizing such charges. The fees allowed to attorneys by statute are confined to suits in courts of record. (2 R. S. 526, § 18 ; id. 528, § 27 ; Sess. Laws of ’40, p. 327, § 1 et seq.) They have never been allowed in summary proceedings before particular officers, where the services of an attorney, as such, are not necessary, for any person may conduct the proceeding.

Motion granted.^[1]

(a) (a) See Potter v. Richards, ( 10 Wend. 607 .)