American Print Works v. Mayor

Headnote

Motion by both parties on appeal respectively from taxation of costs.

Judgment for the defendants was rendered respectively in the above cause, and in thirty-six other causes, in the superior court of the city of New-York, on the 1st of May, 1843, for costs - in each cause. These judgments were entered in pursuance of a stipulation, entered into to make the decision of the thirty-seven causes dependent upon the decision of the case of Amos Lawrence and others against the same, defendants likewise entered in the superior court, and upon which a writ of error was brought to the supreme court and subsequently carried to the court *of errors. The questions being the same in the thirty-seven causes as in the Lawrence case. The stipulation provided that either party should be at liberty to enter up judgment in the supreme court by a common rule, upon the stipulation, in accordance

with the judgment of the court, to be made in the Lawrence case ; but if a writ of error should be brought by either party upon the judgment of the supreme court, in the Lawrence case, no proceedings should be had upon the judgment in the supreme court in the thirty-seven causes, until the decision of the court of errors in the Lawrence case.

The judgment of the superior court, in the Lawrence case, having been affirmed by the supreme court and the court of errors, the attorney for defendants in the thirty-seven causes claimed the right to enter up judgment in this court, on the stipulation, and made out a bill of costs in the above entitled cause (one of the thirty-seven) as follows:

“ Atty. and counsel retaining fee, . $8 00 Deducted on $3. Dr. writ of error, $1.50; 2 co-taxation. pies, $1.50, .... 3 00 2. Dr. assignment of error, $1; 2 copies, $1, .... 2 00 2. Dr. joinder in error,'$1; 2 copies, $1,..... 2 00 Dr. costs, $1; copy to serve, $0.50, 1 50 Notice of taxing and service, . 0 50 Taxation and attendance, 0 75 Drg. judgment record, . . 3 00 Judge signing same, 0 13 Clerk filing record, . 1 00 Affidavit of disbursements, . 0 63 .13 3 transcripts, .19; postage, .10; dockg., ... 0 00 .35 Dr. execution, $1 ; notice on same .... 1 25 .13 Sheriff éntg., 13; clerk entg., 13, . 0 26 Clerk entg. satisfaction, . 0 13 $24 63 .7 51 Taxed at $17 12

Add interest on judgment of superior court up to time of taxation.”

Plaintiff’s attorney alleged, that judgment in the above cause was never removed by writ of error to the supreme court; that no writ of error was ever drawn or issued on behalf of the plaintiffs; that no ^assignment of errors was ever drawn, filed or served, and no joinder in error was served; and that the cause had never existed in the supreme court.

The clerk of defendants’ attorney made affidavit, that a writ of error, assignment of error and joinder in error were drawn, in the above cause, before the costs were noticed for taxation; and that forms of judgment records had been printed to be used in the thirty-seven causes in the supreme court, on the part of the defendants.

Plaintiff’s attorney, on the taxation, objected: 1st, That no writ of error had ever been brought upon the judgment between the above parties in the superior - court; no such cause as above 'entitled had ever existed in the supreme court, and that no costs should be taxed. 2d, That the charge of a counsel retaining fee was erroneous, there being no issue of fact or law. 3d, Affidavit of disbursements was unnecessary. All of which objections the taxing officer overruled.

Defendants’ attorney alleged, as ground of his appeal, that the following items were disallowed and stricken out by the taxing officer, to wit:

Dr. writ of error, $1.50 ; 2 copies, $1.50, . $3 00

Dr. assignment of error, $1; 2 copies, $1, . 2 00

Dr. joinder in error, $1; 2 copies, $1, . 2 00