Metropolitan Elevated Railway Co. v. Duggin — 11 N.Y.S. 353

Majority

p. 353

Metropolitan El. Ry. Co. v. Duggin et al.

(Supreme Court, General Term, First.Department.

October 24, 1890.)

Headnote

Taxation or Costs.

Judgment was rendered upon demurrers in favor of D. and S. and seven other defendants for costs and an additional allowance. The judgment was affirmed at general term, with costs. The court of appeals reversed the judgment except as to D. and S. Held, that D. and S. were entitled to full costs at general and special terms, and to two-ninths of the extra allowance.

Appeal from special term, Hew York county.

Action by the Metropolitan Elevated Railway Company against Charles‘ Duggin and John D. Slayback, impleaded with Sylvester H. Kneeland and others. A judgment of the special term was entered sustaining the several demurrers of all of the defendants to the. complaint, and awarding to defendant Kneeland $97.28, his costs, and to the other defendants, including Duggin, and Slayback, $96.72, their costs, and further awarding to all the defendants together $750 by way of additional allowance. This judgment was in all respects affirmed by the general term, and a judgment of affirmance was entered on June 30, 1887. The judgment of the general term awarded to the defendant Kneeland $90.87, his costs on the affirmance, and to the other defendants $115.77, their costs on the affirmance. The court of appeals reversed the judgment of the general term as to all the defendants except Duggin and Slayback, but as to Duggin and Slayback the judgment was, in all things, affirmed. See 24 H. E. Rep. 381. Accordingly, plaintiff tendered to Duggin and Slay-

p. 354

back two-eigbtlis of the amount of the costs included in the judgment of the special term,, and two-ninths of the allowance contained therein, and two-eighths of the judgment for costs of the general term, and demanded satisfaction pieces of the judgments. Duggin and Slayback refused to receive these amounts and satisfy the judgments therefor, and thereupon the plaintiff made a motion for.an order directing the clerk to satisfy the judgments, on the plaintiffs paying to Duggin and Slayback the proportions which they tendered them as above stated. The special term held that Duggin and Slayback were entitled to the full costs of the special term, but only to two-ninths of the allowance, and to the full amount of the general term judgment, and ordered accordingly. From this order, so far as it allows Duggin and Slayback only two-ninths of the allowance included in the special term judgment, this appeal is taken.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Barlow & Wetmore, (George W. Weiffenbach, of counsel,) for appellants. Davies & Rapallo, (Brainerd Tolles, of counsel,) for respondent.

This action was brought against the defendants Dug-gin and Slayback together with seven others. Judgment was rendered in favor of the defendants upon demurrers, and separate bills of costs were •awarded to some of the defendants, and $750 was awarded to all of the defendants in addition to costs. The judgment was affirmed at general term, and separate bills of costs were taxed by the same defendants. The court of appeals reversed the judgment as to all of the defendants except Duggin and Slayback, as to whom it was affirmed, without costs. These defendants claimed that they were entitled to be paid in full the judgments of general and special .term for costs, and also the allowance, in addition to costs, of $750. The plaintiff claimed that they were only entitled to their proportionate share of each. A motion was made for an order that the clerk satisfy judgments on payment of such proportion. The court denied this motion, but held that Duggin and Slayback were entitled to full costs at general and special terms, and to their proportionate share of the allowance, viz., two-ninths. From this order Duggin and Slayback appealed, and the only question presented is, are they entitled to the whole allowance?

It would seem to be a sufficient answer to this claim that no such allowance has ever been made to them. Additional allowances are within the discretion of the court, and no court has as yet,exercised its discretion in their favor. The allowance as made was to all the defendants, not to Duggin and Slay-back; and if the respondent had appealed it might be claimed with much greater force that they were not entitled to receive any allowance, and the court has never awarded any to them alone. It is urged that there is no difference as far as the right of Duggin and Slayback are concerned between the costs and the allowance, and that it is just as idle to speculate as to what allowance would have been awarded to them alone as it is to speculate on the amount of costs which they would have had. We think that a part of this proposition is probably true, and that it is idle to speculate what allowance Duggin and Slayback would have had if successful alone; and therefore, probably, no part of the allowance should have been awarded them, as the discretion of the court, as we have said, has never been exercised in their favor under these circumstances. As to the costs, however, the situation is different. As far as appears from the appeal papers, Duggin and Slayback were entitled, as matter of right, to costs. Their amount is fixed by statute, and there is no speculation about it when they are awarded statutory costs. The order should be affirmed, with $10 costs and disbursements. All concur.