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Degener v. Underwood

30 N.Y.S. 399 Court N.Y. Super. Ct. English

Delivered by McADAM, J.

Contents

Majority

p. 399
(31 Abb. N. C. 479.)
DEGENER v. UNDERWOOD et al.
(Superior Court of New York City, Special Term.
May, 1894.)

Headnote

1. Costs—Term Fee in Court oe Appeals.
On appeal to the court of appeals, but one term fee can be charged for each calendar year, excluding the term at which the case is argued or disposed of.
2. Damages on Appeal.
Where the court of appeals affirms a judgment of the general term, with 5 per cent, damages, the percentage should be computed on the amount of both judgments below, but not on the interest accrued upon the judgments.
Action by Frederick L. Degener against John T. Underwood and Frederick W. Underwood. A judgment of the general term affirming a judgment in favor of plaintiff ( 21 N. Y. Supp. 107 ) was affirmed by the court of appeals ( 37 N. E. 567 ), and appellants (defendants) move for a retaxation of costs. Denied on condition.
James A. Hudson, for the motion.
J. E. Ludden, opposed.

This court in Becker v. Railway Co., 30 N. Y. Supp. 400 , following Palmer v. De Witt, 42 How. Pr. 466 , and Powell v. Railroad Co. (Sup.) 3 N. Y. Supp. 763 , held that but one term fee can be charged on an appeal to the court of appeals for each calendar year, and that the- term at which the cause is argued or otherwise disposed of must be excluded. The cause went on the calendar in 1893, and was argued in 1894; so that but one term fee, instead of three, was taxable. Twenty dollars must therefore come off the biU.

The court of appeals affirmed the judgment of the general term, with costs and 5 per cent, damages. 37 N. E. 567 . This percentage should be computed upon the amount of both the judgments below, but not upon the interest accrued upon the judgments. Adams v.

p. 400
Perkins, 25 How. Pr. 368 . The respondent exacted a percentage on the interest, as well as the damages awarded by the original judgment; and this excess, after charging interest on the general term judgment, must be deducted. If the respondent returns to the appellants’ attorney the.$20 aforesaid and the excess of interest, as before suggested, the application for a retaxation will be denied; otherwise, it will be granted, with costs. Settle order on notice, and specify in the order to be settled the specific amounts to be returned.

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