Le Roy v. Browne — 28 N.Y. St. Rep. 210

Majority

p. 210

Wm. B. Le Roy et al., App’lts, v. Anne Browne et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889.)

Headnote

1. Nuisance—Costs.

In an action to abate a nuisance costs are not allowed as “ of course,” ,

p. 211

2. Same—Appeal.

In such an action defendants entered judgment, with costs, and gave notice of retaxation. Plaintiffs appeared and objected and the clerk took the matter under advisement and finally taxed the costs. Plaintiff, supposing the costs to be not yet taxed, served a notice of appeal from the judgment as originally entered. Held, that under such circumstances service of notice of appeal would not be deemed a waiver of plaintiff’s objections to the costs, and that this court would entertain his appeal from an order denying a motion to readjust costs by striking them out.

Appeal from an order of the Albany special term,denying amotion to readjust the taxation of costs by striking out the same from the judgment upon the ground that the defendants were not entitled to costs in the absence of any award thereof by the court.

J. F. Crawford, for app’lts; Doyle & Fitts, for resp’ts.

The complaint charged the defendants with maintaining a nuisance, and demanded judgment that the same be abated, and for damages. Upon the trial the plaintiffs were non-suited, but no award of costs was asked by the defendants and none was made.

Costs are not allowed as “ of course,” but only upon the award of the court in such an action and the defendants were irregular in entering them in their judgment. The judgment was entered for the defendants with $138.93 costs, March 15, 1889, without notice to plaintiffs. Uotice of retaxation was thereupon given and both parties appeared before the clerk March 23, 1889, the plaintiffs opposing the taxation upon the ground that costs had not been awarded the defendants. The matter was adjourned until April 2, 1889. The clerk took the matter under advisement, and on April 11, 1889, taxed the costs for defendants as proposed. April 13, 1889, the plaintiffs without knowing that the clerk had adjusted the costs, served upon defendants’ attorneys a notice of appeal from the judgment as entered March 15, 1889, which notice recited the judgment to be for nonsuit and for $138.93 costs.

The general rule is that when a party takes' such action in a case as implies the regularity of some previous action of the opposite party he waives his objection to its irregularity.

The rule is intended to promote fair practice and should be fairly applied. We do not think it ought to defeat the plaintiffs’ motion in this case. At the first opportunity to object to the defendants’ claim for costs, the objection was made, and was supposed by the plaintiffs’ attorney to be still held under advisement by the clerk, when in order to be timely with his appeal from the judgment of nonsuit he served notice of appeal from it. He should not be held to have waived his objection when his action from the outset is consistent with his persistence in it.

The plaintiff’s motion was the proper appeal from the adjudication of the clerk. The appeal from the judgment and from the clerk’s adjudication were not inconsistent; both were steps to protect the plaintiffs’ rights. Kerr v. Dildine, 15 N. Y. State Rep., 616; Peart v. Peart, id., 476. We think the case plainly distinguishable from Guckenheimer v. Angevine, 16 Hun, 453 , and Pfaudler Co. v. Sargent, 43 id., 154; 5 N. Y. State Rep., 413.

p. 212

We reverse the order with costs, and grant the motion without ■ costs, and without prejudice to such motion for costs as the defendants may be advised to make.

Learned, P. J., and Fish, J., concur.