Majority
p. 242SUPREME COURT. Van Rensselaer agt. Kidd. Albany Special Term, Nov. 1850.
Headnote
The statute giving double costs is repealed by the Code. Parker, Justice. See 4' How, Pr. R, 239. (There are adverse decisions upon this point in other districts. See 4 How, Pr. R.)It is too late to make application for double costs, or an extra allowance, after judgment at the general term on appeal.
This was a motion by defendant Kidd for a readjustment of the costs in this cause, and for an extra allowance. Kidd was prosecuted as Treasurer of Albany County, and having succeeded in the suit at the circuit and on appeal at the general term, claimed double costs under the statute, which had been disallowed by the clerk on adjustment.
J. K. Porter, for Motion.
C. M. Jenkins, Contra.
I think the statute giving double costs is repealed by the Code. My reasons are stated in Hallenbeck vs. Miller (4 How. Pr. R. 239).
p. 243
Nor can I award any extra allowance. That can only be done by the court before which the trial was had or the judgment rendered (Rule 86). So too, the value upon which the per centage must be computed can only be ascertained by the court or jury before whom the action was tried (Code, § 309).
If this was a proper case for an extra allowance, it could only have been granted at the circuit. The provision in regard to extra allowance is not applicable to a judgment on appeal (2 Coms. R. 570).
The costs of the original action were adjusted by the clerk and became part of the judgment from which the appeal was taken. That judgment has been affirmed and it is now too late to add to or diminish the costs thus adjudged.
This objection is applicable to both branches of this motion.
Motion denied.