Peck v. Wood

Headnote

Where defendant’s attorneys moved for retaxation of costs with costs of retaxar tion, and of the motion, on the ground that no copy bill of costs and notice of taxation had ever been served on them; and in answer, plaintiff’s attorney showed a regular service of the costs and notice of taxation; the defendant was allowed a retaxation on terms; to wit: paying costs of opposing the motion.

Motion by defendant for retaxation of costs, with costs of relaxation and costs of motion.

Defendant’s papers showed that this cause was brought to a hearing before David Duel, Jr., Esq., sole referee, at the, city of Troy, county of Rensselaer (where the venue was laid), on the 9th, l(>th and 11th days of September, 1845. On the 31st day of January, 1846, the referee reported in favor of the plaintiff $73.87. On the 17th of March last judgment was perfected, and on the 18th of April execution issued, to the sheriff of Oswego, and received by him on the 22d April, with directions to collect $230.10 with interest from the 17th April, 1846. One of the defendant’s attorneys, in his affidavit, stated that no notice of taxation of- costs in the cause had ever been served in any way or manner on the attonmys for the defendant, or either of them, nor had any such notice been received by them, or either of them, nor had the plaintiff’s attorney served on defendant’s attorneys, or either of them, nor had they received any notice of relaxation of costs, with stipulation to deduct from the execution such amount as should be struck out on relaxation.

On the part of the plaintiff it appeared, from an affidavit of Levi Smith, a clerk in the office of plaintiff’s attorney, that on the 4th day of March last, he served the attorneys of the defendant with a copy of the bill *of costs in this cause, and notice of taxation for the 13th of March, before" Abram B. Ofin, Esq., recorder of the city of Troy, at 10 o’clock, A.M., which service was made by enclosing the bill of costs and notice of taxation in a wrapper, and directed to Messrs. McCarty & Watson, the defendant’s attorneys at Rich-land, Oswego county, E. Y. (that being their reputed place of residence), and on the same 4th day of March deposited in the post-office at Troy, and the postage paid thereon. Job Pier-son, Esq., the counsel for plaintiff, stated in his affidavit, that on the 4th of March last, a copy of the bill of costs in the cause and notice of taxation were made by Levi Smith, a student at law in his office, and on the same day, by his direction,

Smith enclosed the copy costs and notice of taxation in a wrapper, and directed to Messrs. McCarty & Watson, at Rich-land, Oswego county, E". Y., that being their reputed place of residence, and the place to which other papers in the cause had been directed and received by defendant’s attorneys, and on the same 4th of March, Smith left his office with the package so directed, for the purpose of depositing it in the post-office in the city of Troy; he returned soon afterwards, and entered in his law register the service of the papers on that day, and that he paid ten cents postage thereon, which entry he believed correct.