Hauselt v. Bonner — 25 N.Y. St. Rep. 36

Majority

p. 36

Charles Hauselt, App’lt, v. David Bonner, Resp’t.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Practice—Judgment—Costs.

Where judgment has already been entered in favor of a successful party;, another judgment for an additional sum cannot be entered while the first judgment stands, nor can the costs be again taxed, but the judgment must, be corrected, and the costs then taxed.

Appeal from order denying motion to vacate taxation of costs.

Lewis Sanders, for app’lt; P. Stevenson, for resp’t.

The taxation was irregular and should have been set aside. At the time it was attempted, judgment had already been entered in favor of the successful parties upon the previous appeal including Mr. Bonner. This it seems was done by Mr. Fine, who was not the attorney for Bonner. The judgment of the court, however, which was duly entered, was that the defendants in-

p. 37

eluding 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 ten dollars costs and disbursements and the motion to vacate the taxation-granted, without costs and without prejudice to the application and practice above suggested.

Appeal from order denying motion to set aside execution.

Lewis Sanders, for app’lt; Preston Stevenson, for resp’t.

The order should be affirmed, with ten dollars costs and disbursements on the opinion of Mr. Justice Ingraham in the court below.