Nobis v. Pollock — 13 N.Y.S. 837

Majority

p. 837

Nobis v. Pollock et al.

(Supreme Court, Special Term, New York County.

November 24, 1889.)

Headnote

Costs—On Appeal—Before Argument—When Allowable.

Code Civil Proe. N. Y. § 8251, subd. 4, which allows the successful party on ap- ■ peal S20 costs before argument, applies only where the case is in a condition to be argued before the appellate court; and therefore no such costs are allowable for terms in which the case has been improperly on the calendar of the general term because the findings were not properly made and signed by the trial judge.

Action by Charles T. Nobis against W. J. Pollock and Louisa Pollock for the foreclosure of certain liens. There was a judgment in plaintiff’s favor at special term, and defendant appealed to the general term. When the cause was reached on the calendar of the general term, it was discovered that the findings had not been signed by the trial judge, and the general term refused to hear argument. When the case again. came before the general term that court refused to consider it because the findings had not been properly prepared. See 6 N. Y. Supp. 273 . At the third term the cause was stricken from the calendar because' one of the appellants had not been served with notice of argument. Thereafter, in accordance with a compromise between the parties, the appeal was dismissed, “ with costs.” Among other items, the clerk allowed the respondent two term fees, at $20 each. Defendant Louisa Pollock duly excepted to these items, and now moves for a retaxation of the costs. Code Civil Proe. N. Y. § 3251, subd. 4, allows the successful party on an appeal to the general term of the supreme court, as costs, $20 before argument.

Charles B. Meyer, for plaintiff. Roger Foster, for defendants.

T think that the term fees—$20 for two terms at the general term—should be stricken from the taxed bills of costs. The case was not in a condition to be argued, and therefore was not properly on the calendar until it was in the proper form for the consideration of the appellate branch of the court, and that was not until the corrections required by the general term were actually made; and for the term at which the argument was had no term fee can be allowed. In other respects the clerk’s taxation was correct.