Marx v. Gross — 22 N.Y.S. 387

Majority

p. 387

MARX et al. v. GROSS et al.

(Superior Court of New York City, General Term.

March 6, 1893.)

Headnote

Taxation of Costs.

Where defendant, by leave of the court, pays the costs up to date, and amends, the order is a final adjudication that the items belong to plaintiff, and in taxing the costs after final judgment for plaintiff the clerk cannot tax such items in favor of either party.

Appeal from special term.

Action by Frederick Marx and another against Eugene A. Gross and others. From an order affirming the taxation of costs, plaintiffs appeal.

Affirmed.

For former report, see 9 N. Y. Supp. 719 .

Argued before SEDGWICK, C. J., and DUGRO and GILDER-SLEEVE, JJ.

George A. Black, for appellants.

Foster & Thomson, for respondents.

During the trial the defendants obtained leave to withdraw a juror upon paying the costs and disbursements of the action up to date. They paid the costs and amended. A final judgment was obtained by the plaintiffs, who presented a bill of costs, from which, upon taxation, the clerk struck all items included in the costs paid as a condition of obtaining leave to amend. From an order made at special term affirming the taxation this appeal was taken.

The clerk’s action was proper. The items in question were finally disposed of by the order allowing the defendants to amend; they having paid the costs and amended. The order was an adjudication that the items covered by it belonged to the plaintiffs. They could not be again taxed in favor of either party. Seneca Nation v. Hawley, 32 Hun, 288 ; Provost v. Farrell, 13 Hun, 303 . Order affirmed, with $10 costs and disbursements. All concur.