Hakes v. Peck — 30 How. Pr. 104

Majority

p. 104

SUPREME COURT.

Jeremiah S. Hakes, respondent agt. John M. Peck, appellant.

Headnote

The supremo court having decided in Adams agt. Perlcins (25 Sow, Pr. JR. 368), and in Shord agt. Dwight (26 Id. 163), that there is no limitation to the nunu her of term fees in the court of appeals, which are taxable under subdivision 7, of section 307 of the Code, and the legislature in 1864, since those decisions were reported, having amended that subdivision, without any change therein respecting this question, it must be considered a legislative interpretation of the section, as it had been thus judicially declared that such term fees are not limited.

Albany General Term,

May, 1865.

Before Peckham, Miller and Ingalls, Justices.

This was an appeal by the defendant from an order of the special term refusing to grant a readjustment of costs where the clerk had allowed $180 for eighteen terms in the court of appeals.

J. A. Millard, for the plaintiff,

cited Adams agt. Perkins, 25 Howard, 368 , and Shord agt. Dwight, 26 Id., 163; Code, section 307, subdivision 7, as amended in 1864.

C. B. Cochrane, for the defendant,

cited Fullerton agt. Viall and Grant, 28 Howard, 224 , and Richmond agt. Sherman, Id., 491; also another case in the third district decided the same way, but not reported.

The Court stated that they would feel bound by the decision in Richmond agt. Sherman, and the unreported case in their own district, to limit the costs to five terms, if it had not been for the amendment of 1864. True the language is not changed in subdivision 7, so far as this question is concerned, but at that time the only reported cases liad decided that the number of term fees in the court of

p. 105

appeals was not limited, and the legislature are presumed to have been acquainted with those reported decisions. Therefore, the fact that they did amend that section in other particulars, and did not change it in this, must be deemed a legislative interpretation of the section as it had been judicially construed. The cases cited by defendant’s counsel had not then been reported.

Order appealed from affirmed.