Woolsey v. Trustees of Village of Ellenville — 32 N.Y.S. 546

Majority

p. 546

(84 Hun, 234.)

WOOLSEY v. TRUSTEES OF THE VILLAGE OF ELLENVILLE.

(Supreme Court, General Term, Third Department.

February 12, 1895.)

Headnote

Costs—Right to—Res Judicata. Costs paid by plaintiff as condition for the allowance of an amendment of the complaint cannot afterwards be taxed against defendants on recovery of judgment by plaintiff.

Appeal from special term, Ulster county.

Action by Rachel A. Woolsey against the trustees of the village of Ellenville to recover damages for personal injuries caused by the alleged negligence of defendant in failing to remove ice from the sidewalk. From an order disallowing certain items of costs, plaintiff appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

John E. Van Etten & Son (John E. Van Etten, of counsel), for appellant.

Oeorge G-. & J. B Keeler (A. T. Clearwater, of counsel), for respondent. -

This is an appeal from an order of the special term modifying a bill of costs, as taxed by the clerk of Ulster county, in favor of the plaintiff. After two trials at the circuit, and an appeal to the general term on the third trial, the plaintiff obtained leave to amend his complaint on complying with the following order:

“Ordered that leave be, and the same is hereby, granted to the plaintiff herein, to file and serve a copy of said amended complaint upon the defendant’s attorney herein within twenty days from the date hereof on payment to the defendant’s attorney of the statutory costs after the first notice of trial, including two trial fees at the circuit and one argument fee at the general term, and ten dollars, costs of this motion; but no disbursements or witnesses’ fees, or printing disbursements to be included in said payment, nor any other costs at the general term, except one argument fee.”

p. 547

It appears that the items of costs above directed to be paid amounted in the aggregate to the sum of $190, and that the same constitute the statutory allowance to the defendant for the items embraced in the order. On the third trial, and after the amendment of the complaint, the plaintiff recovered a verdict of $4,000, and, on entering judgment on such verdict, presented to the clerk for adjustment the same items of costs against the defendant, and amounting to the same aggregate sum, as that directed in the order allowing the amendment of the complaint to be paid by the plaintiff to the defendant as a condition for such amendment, which the clerk taxed under defendant’s objection, and which, on motion before the special term, were stricken out, and from which order this appeal is taken.

The plaintiff accepted of the terms imposed for the privilege to amend her complaint. We think the case comes clearly within the principle of the decision in Seneca Nation of Indians v. Hawley, 32 Hun, 288 . As was said in that case: “The order was an adjudication that the items covered by it belonged to the defendant. They could not again be taxed by either party.” This was the view taken by the learned judge at special term, in which we fully concur. Order affirmed, with $10 costs and printing disbursements. All concur.