Wolfe v. Van Nostrand — 2 N.Y. 570

Majority

p. 570

Wolfe and others vs. Van Nostrand.

Headnote

The provision of the code (§ 308) authorizing an extra allowance of costs in certain cases, applies only to the court of origin il jurisdiction, and in reference to a trial in that court.

Wolfe and others brought ejectment in the superior court of the city of New-York, where judgment passed for the defendant. The plaintiff then brought a writ of error to this court, after July I, 1848, and in September last the judgment was affirmed.

S. Stevens, for the defendants in error,

now moved for an additional allowance, pursuant to the 308th section of the code. He said a writ of error was a new suit; and there has been a trial in this court within the definition of a trial as given by the code. He cited sections 8, 252, and 308, 309.

W. Kent, for plaintiff in error.

We think an additional allowance, beyond the costs given by the 307th section of the code, can only be made by the court of original jurisdiction and in reference to the trial in that court.

Motion denied.