Clegg v. Aiken — 11 N.Y. St. Rep. 354

Majority

p. 354

Charles A. Clegg, Resp’t, v. Andrew J. Aiken et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 27, 1887).

Headnote

Costs—What defendant can tax as disbursements..

The only disbursements which a defendant can tax are those which he has incurred, or will incur, in the entry of judgment, and the issuance of process for its collection.

Appeal from order striking out all the disbursements allowed to the appellant herein in the bill of costs and disbursements as taxed by the clerk.

Philip Carpenter, of counsel, for app’lt; William Ford Upson, of counsel, for resp’t.

—The only disbursements which a defendant can tax are those which it has incurred, or will incur, in the entry of judgment and the issuance of process for its collection.

It being impossible to determine upon the affidavits submitted upon the original motion made herein, what, if any, disbursements the appellant had made, a reference was made to the referee who tried the cause to. ascertain what, if any, disbursements the appellant had made or become liable for. The referee reported, and his conclusion is supported by the evidence taken before him, that the appellant had not made any disbursements in conducting the defense of this action, and was not liable for any. Under these circumstances no disbursements could be taxed.

The other defendants who were unsuccessful in this action cannot recover a part of the disbursements made by them, because of the success of the defendant, now appellant.

The appellant appears to have been entitled to some part of the small disbursements contained in the bill of costs, such as,

Certificate of taxation. .25

Sheriff’s fee on execution........................... .72

Transcript and filing....................____........ .50

Certified copy judgment............................ 1.00

Copies, orders...................................... .90

All these should have been allowed.

The order appealed from should, therefore, be modified by the allowance of the disbursements, and, as modified, affirmed, without costs.