Landon v. Van Etten — 32 N.Y. St. Rep. 439

Majority

p. 439

George Landon, Rec’r, Resp’t, v. James Van Etten et al., App’lts.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Costs. — Extra allowance. — Power of court to grant.

Where either party is entitled to costs, such costs are not restricted to those given expressly, but include an allowance if a proper case be made for them; hence, where defendant’s offer of judgment was more favorable than plaintiff’s recovery, the defendant being entitled to costs, the court has power to grant him an extra allowance.

Appeal from order denying motion for extra allowance.

L. Godkin, for app’lts ; A. Cameron, for resp’t.

The defendant’s offer of judgment was better than the plaintiff’s recovery. He is, therefore, the prevailing party, and entitled to costs. The learned judge at special term thought him entitled also to an additional allowance, but felt constrained to refuse to grant it from want of power, his judgment in that respect yielding to the decision made in Magnin v. Dinsmore, 47 How. Pr., 11 , to that effect. That case does not, however, discuss the question which presents'itself in limine, namely, what is meant by an allowance. Justice Woodruff, in Brady v. Durbrow, 2 E. D. Smith, 78, 84, arrived at the conclusion, upon examination of the question, that the allowance was of additional costs, and that the phrase must be so interpreted.

This result is satisfactory, the chapter relating to the subject being entitled in the Code “Taxing Amount of Costs,” and articles 1 and 2 under the title are “Sums Allowed as Costs,” “Taxation of Costs.” Whatever is given by way of indemnity under the statute is within the designation costs, and being costs the party entitled to them as provided by the Code is also entitled to those given in addition to the established sums. If the prevailing party, for example, is entitled to costs, an allowance, meaning additional costs, may be given him to such extent as may be determined on a proper application showing the right to them to exist.

p. 440

It is unnecessary, however, to pursue this subject, inasmuch as the question has already been considered and determined by this court in Commissioners of Pilots v. Spofford, 3 Hun, 57 .

The proposition asserted and maintained by that case is, where either party is entitled to costs, such costs are not restricted to those given expressly, but include the allowance if a proper case be made for them. This decision was predicate of the sections of the old Code, which are, however, substantially the same as those of the present Code.

The order appealed from should therefore be reversed and the motion be remitted for consideration.

Ordered accordingly, with ten dollars costs and disbursements of this appeal.

In expressing these views we must not be understood as intimating an opinion as to the propriety of granting any allowance.

Van Brunt, P. J., and Daniels, J., concur.