Crotty v. De Dion-Bouton Motorette Co. — 92 N.Y.S. 619

Majority

p. 619

CROTTY v. DE DION-BOUTON MOTORETTE CO.

(Supreme Court, Appellate Division, Second Department

March 10, 1905.)

Headnote

Costs—Retaxation—Evidence.

On a motion for retaxation of costs, defendant was not entitled to read an affidavit and order opening his default on terms, which papers were not used in the taxation proceedings before the clerk.

Appeal from Special Term, Kings County.

Action by Holton M. Crotty against De Dion-Bouton Motorette Company. From an order retaxing plaintiff’s costs, he appeals. Reversed.

Argued before BARTLETT, WOODWARD, JENKS, RICH, and MILLER, JJ.

Timothy B. Halpin, for appellant.

Charles W. Church, Jr., for respondent.

This is an appeal from an order directing that plaintiff’s costs be retaxed by disallowing a trial fee of $30 and a term fee of $10 for a term at which an inquest was taken, the default being subsequently opened. Upon the papers before the clerk, the plaintiff was entitled to tax these two items. On the motion for retaxation at Special Term, the defendant was permitted to read the order opening the default, and an affidavit to the effect that the $40, payment of which was imposed as a condition of opening the default, was stated by the justice granting the order to be intended to cover the trial and term fee which is disallowed by the order appealed from. The plaintiff objected to the reading of these papers.

On a motion for a retaxation, the parties should be confined to the papers used before the clerk. As the plaintiff was entitled to have the items taxed upon the papers before the clerk, it is unnecessary to determine the effect of the additional facts presented by the order and affidavit, reading of which-was objected to.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.