Majority
p. 282Hauselt v. Bonner. (Supreme Court, General Term, First Department. July 9, 1889.)
Headnote
Costs—Taxation.Where, on appeal, a judgment is affirmed, with costs, and the costs áre taxed by F., the attorney of some of the appellants, and judgment entered, another judgment for an additional sum, in favor of B., one of the appellants, of whom F. was not the attorney, cannot be entered; the only remedy of B. is to have the judgment corrected, and then tax his costs.
Appeal from special term, Hew York county.
The judgment in the suit of Hauselt against Patterson and others was on appeal affirmed in part and reversed in part, with costs. 4 H. Y. Supp. 772. Costs were taxed in favor of all the defendants who were successful on the appeal in one'sum, by Mr. Fine, the attorney of some of them. David Bonner, one of the defendants, moved for and obtained an order for an additional taxation, from which order plaintiff appealed.
Argued before Van Brunt, P. J., and Brady and Barrett, JJ. Kaufmann & Sanders, for appellant. Preston Stevenson, for respondent.
The taxation was irregular, and should have been set aside. At the time it was attempted judgment bad already been entered in favor of the successful parties upon the previous appeal, ( 4 N. Y. Supp. 772 ,) includ
p. 283
ing Mr. Bonner. This, it seems, was done by Mr. Fine, who was not the attorney tor Bonner. The judgment of the court, however, which was duly entered, was that the defendants, including Bonner, recover of the plaintiff $67.88, and that they have execution therefor. While this judgment stood Mr. Stevenson could not enter another judgment in favor of Bonner for an additional sum, nor could Bonner’s costs be again taxed. His proper practice was to have the judgment corrected, and then to tax his costs and enter a proper judgment. The order should be reversed, with $10 costs and disbursements, and the motion to vacate the taxation granted, without costs, and without prejudice to the application and practice above suggested.