Wheeler v. Mowers

The only remaining question is whether plaintiff was entitled to tax costs before and after notice of trial twice. Section 3251, which regulates the amount of costs recoverable in actions originally commenced in courts of record, provides that where a new trial is had, pursuant to an order granting the same, the sum of $25 is taxable for all proceedings after the granting of, and before, the new trial. Section 3073 does not contain any similar provision. Going back to the old Code, I find that section 307, which regulated the amount of costs generally, contained the following provision, viz.: “To either party, where a new trial shall be had, for all proceedings before such new trial, twenty-five dollars.” Voorhees’ Code (8th Ed.). Section 371 of the old Code, which fixed the amount of costs taxable in actions appealed to the county court for a new trial for proceedings in county court, contained no such provision; so that for nearly 50 years the Code has contained a provision giving in actions generally the right to tax a fee for services after granting of, and before, a new trial. During all that time it contained no express provision authorizing the taxing of a fee for like services in actions appealed to the county court for a new trial. It also fixes a larger fee for like services in the former, than in the latter, class of actions. This distinction is significant. Evidently, the legislature deemed it necessary to insert an express provision in the statute, to justify the taxation of a fee for that service. Otherwise, section 307 of the old Code and section 3251 of the new would not have contained the provisions quoted. The failure to insert a similar clause in section 371 of the old Code and section 3073 of the new clearly implies an intention on the part of the legislature to withhold the right to tax a fee for services after granting, and before, a new trial in actions coming into the county court on appeal for a new trial. Costs under the Code are a mere creature of statute. Commissioners v. Spofford, 3 Hun, 52 -54. “Authority must be found in the statute for the imposition of costs. Such authority will not be inferred.” Shaver v. Eldred, 86 Hun, 51 -55, 33 N. Y. Supp. 158 . In Commissioners v. Spofford, 3 Hun, 55 , it was held that “No costs are allowed by the statute to any party in either of these cases without the express adjudication of the court. Silence is a denial of them.” That rule is just as applicable to a statute as to an order. “Silence,” in the statute, as to costs between the two trials, is a denial of them. It was held in Bank of Mobile v. Phœnix Ins. Co., 8 Civ. Proc. R. 212, that a party could not tax costs before and after notice of trial twice in the same action. In Spring v. Day, 44 How. Prac. 390, however, it was held that, where a jury had disagreed upon the first trial, a second charge of $15 for proceedings after notice, and before second trial, was taxable. I prefer to follow the former authority, for the reasons given. The trial occupied several days, and it is urged that the allowance of costs with the items in question is wholly inadequate. That is true, but, as was said in Shaver v. Eldred, 86 Hun, 56 , 33 N. Y. Supp. 158 , that suggestion should be addressed to the law-making power. The statute must authorize costs before they can be imposed. At common law nei

ther costs nor disbursements were allowed to the prevailing party in any case. The first comprehensive statute upon the subject in this state was chapter 190 of the Laws of 1801. To deny the motion for the reason that the objection was directed to the costs before and after notice of the first trial, rather than the second, would be more technical than wise.

The motion to strike out from plaintiff’s bill of costs one of the items of $15 before, and $10 after, notice of trial is granted. As thus modified, the costs, as taxed by the clerk, are confirmed. -No costs of this motion. Ordered accordingly.