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Morell v. Gould

5 Hill & Den. 553 Court N.Y. Sup. Ct. English

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p. 553
Morell and another vs. Gould.

Headnote

Where the defendant obtains an order putting off the trial for the circuit on payment of costs, fees paid by tife plaintiff for exemplifications of records and official certificates to be used as evidence, are not taxable as a part of the costs due under the order.
Costs. The trial of this cause having been put over the circuit on the defendant’s application, upon payment of costs, the plaintiffs’ attorney inserted in his bill the fees paid by him for exemplifications of records, certificates of the register, secretary of state &c. procured for the purpose of being used as evidence on the trial. The charges were disallowed by the taxing officer, and the plaintiffs now moved for a re-taxation.
N. Hill Jun., for the motion,
cited Jackson v. Root, ( 18 Johns. 336 ;) Winchell v. Latham, (7 Cowen, 367;) Van Rensselaer v. Hamilton, (4 id. 539.)
R. J. Hilton, contra,
cited Bank of St. Albans v. Knicker-backer, ( 7 Wend. 532 ;) Jackson v. Mather, (2 Cowen, 584,5.)

We are of opinion that the charges for exemplifications and certificates were properly dis

p. 554
allowed by the taxing officer. They formed no part of the costs incurred with reference to the particular circuit at which the cause was postponed, like subpoenaing witnesses &c. A nisi prius record was formerly taxable in a case of this kind; but, till the act of 1818, (Sess. Laws of 1818, p. 278, § 4,) it was necessary to make out one for each circuit at which the cause was set down for trial. It seems, however, that the practice of taxing the nisi prius record on putting off a cause, continued after the act referred to. (Van Rensselaer v. Hamilton, 4 Cowen, 539.) This probably arose from, the circumstance that the attention of the corat was not directed to the act; and must be regarded as an exception inadvertently made to the general rule of taxation in like cases.

Motion granted.[1]

(a) (a) In general, the costs taxable against a defendant under an order obtained by bim putting a canse over the circuit on payment of cogfs, are such as the plaintiff will have to incur again on going down to trial at' a subsequent circuit, and may therefore, perhaps, properly be termed his extra costs. (See Cowen & Hill’s Notes to Phill Ex. 54, 5.)

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