Wing v. De La Rionda — 37 N.Y. St. Rep. 404

Majority

p. 404

Charles U. Wing, Resp’t, v. Bernardo De La Rionda et al., App’lts.

(City Court of Brooklyn, General Term,

Filed March 23, 1891.)

Headnote

Ejectment—Costs to be paid on granting new trial include extra allowance.

On granting a new trial in ejectment under § 1535 of the Code, the court imposed as a condition the payment of all costs, including an extra allowance granted hy the former judgment. Held, that the requirement of the payment of the amount of the extra allowance was proper, although it was not taxed and was directed in the findings of the court “ in addition to the costs.” An extra allowance is an item of costs just as much as the trial or term fee.

Appeal from so much of an order granting a new trial in an ejectment action as requires the payment by defendants of the extra allowance granted to plaintiff on the trial, as a part of the costs to be paid pursuant to § 1525 of the Code.

Charles H. Otis, for resp’t; O. J. Wells, for app’lts.

This is an action of ejectment, and was tried at special term, and judgment was in of the plaintiff. An extra allowance was awarded in his favor for the sum of $700. The judgment was affirmed by the general term and the court of appeals, and the defendants then applied at special term for a new trial, on payment of costs, which motion was granted. The learned judge held that the allowance of $700 should, be paid as part of the costs, and the defendants took this appeal from so much of the order as required the payment of the allowance. _

_ This question does not appear to have ever before been raised, and no authority directly in point has been cited. The counsel for the appellants lays stress on the fact that the court found that the plaintiff was entitled to judgment “ together with his costs

p. 405

and an extra allowance of $700 ” and that the allowance was not taxed in the bill of costs. It would have been technically the proper practice, in our opinion, for the clerk to have included in the bill of costs the allowance. It is the custom of the clerk to endorse on the judgment roll the damages and costs separately, including the allowance in the costs and it is also usual for the clerk to tax in the bill of costs allowances, whether the party is entitled to the same under §§ 3252 or 3253 of the Code of Civil Procedure. We do not think that the fact that the allowance was not taxed, or that the court, in the findings, directed an allowance in addition to the costs, has any bearing on the question before us for review.

Prior to the Revised Statutes, the action of ejectment was simply to recover the possession, and the party could sue as often as he chose, and could only be stayed by the court of chancery. Bates v. Stearns, 23 Wend., 482 . By the Revised Statutes it was provided that a judgment in ejectment should be vacated within three years on payment of all costs and damages. The damages did not cover mesne profits prior to the Code of Civil Procedure. Larned v. Hudson, 57 N. Y., 151 . The provision of the Revised Statutes as to new trials in actions of ejectment is re-enacted in § 1525 of the new Code.

The same is allowed upon payment of all costs and damages, other than for rents and profits and for use and occupation. The right to the rents and profits cannot be determined until after the new trial, and hence the defeated jiarty should not pay the same until the title is determined. It will be seen that since the Revised Statutes the defendant seeking a new trial in ejectment has been compelled to pay “ all costs and all damages ” except damages for mesne profits.

We are of opinion that an extra allowance is an item of costs just as much as the trial or term fee. The word allowance means the sum granted as additional costs. Title X of the Code of Procedure was as follows: “Of the costs in civil actions.” Section 303 provided that “ there may be allowed to the prevailing party upon the judgment certain sums by way of indemnity for his expenses in this action, which allowances are in this act termed costs.” By this section allowance and costs had the same meaning, and the expression additional allowance meant additional costs. See §§ 308 and 309 of Code of Proc.; see, also, Downing v. Marshall, 37 N. Y., 380 , 384. Chapter XXI of the Code of Civil Procedure is entitled “ Costs and fees,”and title II is entitled “Fixing the amount of costs,” and article first, “ Sums allowed as costs: disbursements.” By a careful reading of §§ 3252 and 3253, included in such article, title and chapter, it is evident that an allowance is awarded as an item of costs.

It is claimed that an extra allowance has been awarded on the second trial, and that thereby the plaintiff may receive an allowance of ten per cent. We are only called to decide whether the plaintiff was entitled to be paid the allowance awarded on the first judgment. Whether the court had power to grant the second allowance need not be determined until the

p. 406

question is presented. We see no reason why the plaintiff was not entitled to be paid the allowance included in the judgment, as the Code provides that he is entitled to receive all costs and all damages except mesne profits.

Order affirmed, with ten dollars costs and disbursements.

Yah Wyck, J., concurs.