Hyperlawhypertext legal database Cook v. New York Floating Dry Dock Co. 1 Hilt. 556

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Cook v. New York Floating Dry Dock Co.

1 Hilt. 556 Court N.Y.C.P. English

Delivered by Hiltoít, J.

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p. 556
Joseph J. Cook v. The New York Floating Dry Dock Company.

Headnote

The right of a plaintiff to an extra allowance in a difficult or extraordinary case, is perfect at the lime when a verdict is rende led in his favor, although the amount of such allowance may not be determined until afterwardk
In an action for the recovery of money, whero the case was difficulty the plaintiff obtained a verdict in his favor at a time when the statute provided that the plaintiff should be entitled to an oxtra allowance.
p. 557
Held, that he was entitled thereto, although the order granting the allowance and fixing its amount was not made until after that provision of the statute had keen repealed.
Appeal by defendants from an order at special term granting an extra allowance. This action was tried before one of tbe judges of tbis court and a jury, in February, 1853, and a verdict rendered for tbe plaintiff for $6,000, A stay of proceedings was ordered and a case made, - on which tbe defendants moved at special term for a new trial. In March, 1854, a new trial was ordered. From tbis decision tbe plaintiff appealed, and tbe court at general term, in October, 1857, reversed tbe order granting a new trial; and directed judgment to be entered on tbe verdict.[1]
Tbe action being a difficult one and for tbe recovery of nsmney, tbe plaintiff applied for and obtained an extra allowance, under section 808 of tbe Code of 1851. The order fixing the amount of this allowance was made in October, 1857, after tbe repeal of tbe section referred to, but which was in force at tbe time of tbe verdict.
From tbis order tbe defendants appealed.
Benedict, Burr and Benedict, for appellants.
Tomlinson, Walden and Brigham, for respondent.

— The right of the plaintiff to costs, or to any allowance by way of indemnity for his expenses in prosecuting bis action, must depend upon and be determined by tbe statutes in force in respect thereto at tbe time he became entitled to be thus remunerated.

By tbe Code, all previous statutes regulating costs or fees of attorneys in civil actions were abolished, and instead there was allowed to the prevailing party “certain sums by way of indemnity for his expenses in the action,” and which allowances”

p. 558
were in that act “ termed costs.” Code, § 303. In an action of this nature, these “costs shall be allowed of course to the plaintiff upon a recovery.” § 304, sub. 4.

In addition to. the costs referred to and specified in detail in section 307, the plaintiff, in a difficult case like the present, wherein a trial has been had, was entited to an extra allowance, the amount of which was left to the discretion of the court. Code of 1851, §'308.

All allowances are by the Code “ termed costs,” and the plaintiff’s right to them accrues upon his “ recovery,” which, in this case, was at the time of rendering, the verdict; and although the amount of the extra allowance was not at that time determined, yet the plaintiff’s right to it then became fixed, and was given hiin^y statute. Supervisors of Onondaga v. Briggs, 3 Denio, 173 ; Truscott v. King, 4 How. P. R. 173 ; Holmes v. St. John, 2 Code Rep. 46 ; Taylor v. Gardner, ibid. 47 ; Ellsworth v. Good ing, 8 How. P. R. 3 ; Huber v. Lockwood, 15 ibid. 74 .

The time when a court is disposed to exercise a discretion ought not, upon any just principles, to deprive a party of a right thus fixed and acquired. Wilson v. Henderson, 15 How. Pr. R. 90 ; Crary v. Norwood, 5 Abbott P. R. 219 .

Order appealed from affirmed.

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