Thompson v. St. Nicholas National Bank — 27 N.Y. St. Rep. 186

Majority

p. 186

Jennie M. Thompson et al., Exr’s, App’lts, v. The St. Nicholas National Bank, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Costs—Allowance—Taxation.

An application for an additional allowance can only be made before final costs are adjusted, but the court may upon a proper application set aside such taxation in order to allow the motion to be made.

Appeal from order of the special term setting aside taxation of costs and directing retaxation, and granting extra allowance.

Lewis Sanders, for app’lts; John A. Taylor, for resp’t.

It is undoubtedly true that applications for additional allowance can only be made before final costs are adjusted, but it is also true that the court may set aside a taxation of costs upon a proper application for the purpose of allowing a motion for an extra allowance to be made.

This is what was done in the case at bar. The defendant having been mistaken in his view that he was entitled to tax the allowance, which had been previously granted, asked to have the taxation opened in order that he might make a new application for an allowance, which request was granted, and we see no reason to interfere with the discretion thus exercised. The order appealed from should be affirmed, with ten dollars costs, and disbursements.

Daniels and Brady, JJ., concur.