Hurd v. Merritt

Headnote

Costs.

Motion by defendant for retaxation of costs.—The facts in the case are as follows : The action was tort, and after issue joined, was by Stipulation of parties, referred. It was stipulated that a judgment of the court might be entered on the report of the referees, in the same manner and to the same effect as if the cause were properly referable; after the referees reported, the defendant served his affidavit with a view to move to set aside the report; the plaintiff served his counter affidavit^ and the referees reported a statement of the evidence and points made before them. The cause was put on the calendar at the last May term, and was stricken therefrom because the defendant had not served the plaintiff with a copy of the papers, which it was his duty to furnish the court pursuant to the 48th Rule. Defendant objected to the allowance of any costs except for the judgment record and the fees of entering up the judgment, insisting that the reference was a submission to arbitration, and that the report of the referees was a mere award of arbitrators.

The court overruled the objection, and decided that costs were allowable the same as if the cause were referable; that the plaintiff had merely opposed proceedings, wffiich the defendant should not have taken. The following items were stricken out of said bill: Counsel arguing at special term, non-enumerated motion, opposed, $5; counsel arguing at special term, non-enumerated motion, not opposed, $2; attorney’s fee for proof of service of notice of trial and inquest, 50cts.; for proof of service of notice of hearing for defendant and referees, 50cts.; for drawing subpcena writs and tickets on three adjournments of the trial before referees, $6; for service of plaintiff’s counter affidavit on motion to set aside report of referees, 25cts.; for proof of service of same, 50cts.; [39 for preparation of papers to oppose motion of defendant for leave to have referees report evidence, plaintiff consenting that defendant’s default for not giving notice of settling, facts should be waived, |7; for service of order of Judge Kent revoking a former order made by him with notice.

2Sets.; for proof of service of same, 50cts.; ing report of amount due plaintiff, 37Jcts. referees drawing and copy-