Cahill v. Mayor of New York

The defendant was allowed to amend the answer on “payment of the taxable costs to date.” These costs were duly taxed and paid, and then defendant served the amended answer. The case subsequently came on for trial, and a verdict was rendered in favor of plaintiff. Upon the taxation of costs consequent upon this verdict, the items that had previously been taxed and paid on the service of the amended answer were stricken out as having already been paid. The plaintiff now moves for a retaxation, to include those costs. Had the court, upon granting the motion for leave to serve the amended answer, imposed, as a compensation to the plaintiff, the payment of a sum of money equivalent to the taxable costs to date, to be ascertained by the clerk, this motion might well be granted (see Schmidt v. Mackie, 9 Wkly. Big. 288), as in that case there would not have been a double taxation of the same costs. In the case at bar, as we have seen, the defendant was required, to pay “the taxable costs to date.” Where a party to an action is permitted to amend his pleading upon the payment of costs, an order to that effect is an adjudication that the items covered thereby belong to the party adverse to the one so amending, and such costs cannot again be taxed by either party to the action. See Woolsey v. Trustees, 84 Hun, 234 , 32 N. Y. Supp. 543 ; also, Seymour v. Ashenden, 13 Civ. Proc. R. 255; Schmidt v. Mackie, supra; Skinner v. White, 69 Hun, 129 , 23 N. Y. Supp. 384 . The motion for a retaxation is denied, but, under the circumstances, without costs.

Motion denied, without costs.