Majority
p. 490(19 Misc. Rep. 351.) RAPID SAFETY FILTER CO. OF NEW YORK v. WYCKOFF. (Oity Court of New York, General Term. February 3, 1897.) Argued before FITZSIMONS, CONLAN, and McCARTHY, JJ.
Headnote
Costs—Replevin—Value and Damages in Excess of $50.Under Code Civ. Proc. § 3228, subd. 2, providing that in replevin, if the value of the chattel recovered, “as fixed,” together with damages, is less than $50, the amount of plaintiff’s costs cannot exceed the amount of value and damages. The value of the chattel may be shown by affidavit, where the jury failed to fix it.
Plaintiff commenced an action in replevin, and took the goods. The jury awarded possession to it, and fixed the damages at $25, but did not fix the value. Plaintiff presented a bill of costs for $115.91. Defendant objected to its taxation at that amount on the ground that under section 3228 of the Code, subd. 2, no more than $25 could be taxed. Plaintiff moved for a new taxation. Its motion was denied. On motion for reargument, which was granted, the justice reversed his former decision, and on the authority of Claflin v. Davidson, 53 N. Y. Super. Ct. 122 , directed the clerk to retax on proof as to value in the form of affidavits. A retaxation was had, and plaintiff presented an affidavit that the value was $100, and the full bill of costs was taxed. This appeal is taken from the order directing a retaxation.
Appeal from special term.
Action by the Rapid Safety Filter Company of New York against Sarah J. Wyckoff to replevin goods. From an order directing a retaxation of costs, defendant appeals. Affirmed.
A. G. N. Vermilyea, for appellant
M. H. Oppenheim, for respondent.
The clerk’s final taxation was right. Claflin v. Davidson, 53 N. Y. Super. Ct. 122 . So was the justice’s order to retax the bill of costs. Sections 3264 and 3265 of the Code of Civil Procedure.
Order appealed from affirmed, with- costs.
Cases cited
- Claflin v. Davidson 53 N. Y. Super. Ct. 122 p. 490