Effray v. Masson

This is an appeal from an order made by the Hon. Justice Fitzsimons, denying a motion made on behalf of the defendants to amend the judgment entered herein by striking out and disallowing the costs of the plaintiff inserted after a trial and recovery had in favor of plaintiff.

The plaintiff commenced an action against defendant in her representative capacity as administratrix, etc., of Mary Ann Thuillier, deceased, to recover a sum of money claimed to be due to plaintiff from the estate of said decedent. This action was at issue on complaint and answer, and was duly tried before Hon. Justice Van Wyck and a jury, at a regular trial term, and judgment rendered in favor of plaintiff with an extra allowance of five per cent.

The action was commenced after the due presentation to the administratrix in pursuance of a notice published by her requiring creditors to present claims within a specified time, and which claim of plaintiff had been duly presented and absolutely rejected by the administratrix.

After the trial the plaintiff duly served a bill of costs with" due notice of taxation, and costs were duly taxed' by the clerk, in pursuance of such notice, without objection from the defendant.

Judgment was thereupon entered against defendant in her representative capacity as administratrix, on May 11th, the notice of taxation having been previously served on May 8, and on said May 11th notice of the entry of judgment was duly served on appellant’s (defendant’s) attorney.

On May 15th defendant made a motion to set aside the verdict and judgment and for a new trial of this action on the judge’s minutes, which motion was duly heard and argued before the Hon. Justice Van Wyck, before whom the trial was had, and denied, with ten dollars costs to plaintiff, and thereafter the motion to amend said judgment by striking out the costs was made.

The including of costs in the judgment in this case without application to the court was premature and irregular and subject to be stricken out on motion unless the plaintiff can satisfy the court that it comes within the requirements of § 1836 and authorities

[Title of case.]

On the annexed affidavit of Michael F. Finnegan, verified the 19th day of May, 1891, and upon all the proceedings heretofore had herein,

Let the plaintiff or her attorney show cause before me, or otieof the justices of this court, at the chambers thereof in the Old City Hall, in the city of Hew York, on the 21st day of May, 1891, at ten o’clock in the forenoon, why an order should not be made, requiring the clerk of this court to amend the judgment entered herein by striking out all costs other than the actual disbursements, taxed and entered herein.

Service of a copy of this order and affidavit on the plaintiff's-attorney on or before the 19th day of May, 1891, will be deemed, sufficient service.

Dated H. Y., May 19, 1891. J. M. Fitzsimons.

[Title of case.] .

City and County op Hew York, ss.:

Michael F. Finnegan, being duly sworn, says that he is the attorney for the defendant above named.

That this action was brought to recover the sum of $540 and interest for board and lodging, claimed to be due and owing from defendant's intestate at the time of her demise.

That on or about the 19th day of June, 1890, the plaintiff presented to defendant, as such administratrix, her claim for said board and lódging, which was promptly rejected.

That the plaintiff never offered to refer said claim but immediately brought suit against defendant.

That on the trial of this action judgment was recovered against defendant for the sum of $540 and interest, and thereafter and on. the 11th day of May, 1891, the plaintiff’s attorney improperly entered judgment, with costs, other than disbursements, without first, obtaining permission from the court, as required by the Code of Civil Procedure!

Wherefore deponent prays that an order may be made requiring the plaintiff or her attorney to show cause why an order should not be made requiring the clerk of this court to strike out. the costs heretofore taxed in this action.

That no previous application has been made for this order.

M. F. Finnegan.

Sworn to before me this 19th )

day of May, 1891. )

W. Tazwell Fox,

Notary Public, N. Y. Co..

City and County of Hew York, ss. :

Edmund Huerstel, the plaintiff’s attorney herein, being duly .sworn, says: That a trial of this action was duly had on the 5th. ■day of May, 1891, before Hon. Justice Van Wyck and a jury, ■and a verdict rendered by direction of the court in favor of the plaintiff for the sum $639.80, and that an extra allowance of five per cent was granted by the justice to the plaintiff.

That thereafter, on the 8th day of May, 1891, deponent caused to be served on the defendant’s attorney a bill of costs, with a notice of taxation for the 11th day of May, 1891, and that in pursuance of such notice the costs were duly taxed by the clerk at ;$93.91, and that defendant’s counsel did not oppose or object to such taxation, and that on the same day judgment in this action was duly entered, and a copy of the same, with notice of its entry on the same day, served on the defendant’s attorney.

That this action is brought to recover a claim against the estate of said deceased, which had been duly presented to the administratrix in pursuance of a notice of creditors to present claims published by said administratrix, and upon presentation of which the same was rejected by a notice in writing signed by said administatrix, a copy of which said claim is annexed to the complaint in this action, and a copy of the rejection thereof is also hereto annexed.

That the administratrix made no offer in reference to this claim as provided by statute, and the deponent was thereupon retained to commence this action for the plaintiff.

That the judgment entered herein, including costs and extra allowance, is against the defendant in her representative capacity as such administratrix, and not against her individually.

That on the trial of this action the justice granted an extra allowance of five per cent to the plaintiff, to which defendant’s counsel interposed no objection, and at the same time the justice, on the rendering of said verdict, directed in the minutes as follows, viz.: twenty days stay of execution after notice of entry of judgment, and' thirty days to make a case.

That subsequently, on the 15th day of May inst., the defendant’s attorney served a notice of motion to set aside the judgment and verdict, and for a new trial on the minutes, which motion was duly heard before Hon. Justice Van Wyck at a trial term on May 19th inst., and an order was made and duly entered thereon denying the same, with ten dollars costs to the plaintiff; and on the same day the order to show cause in this present motion was served on deponent after an argument had before Hon. Justice Van Wyck, and the eight days after notice of entiy of judgment herein, and eleven days after service of notice of taxation of costs in this action had been served, as above mentioned.

Edmund Huerstel.

Sworn to before me this 21st) day of May, 1891. j

William J. Gilroy,

Commissioner of Deeds, N. Y. Co.

“ Eotice of rejection of claim.

“ June 23,1890.

“ The within cl^im is hereby rejected for the reason that the-same is an unjust and unlawful claim.

“Marie E. Masson,

“Administratrix.”

This then brought the whole question before the court as well' as the question of irregularity. It is the same as it' the motion was now made by plaintiff to allow the costs. The statements-contained in the affidavit of plaintiff’s attorney were not denied nor-answered. This written rejection was absolute and comes clearly within § 1836, Code Civil Procedure.

Earl, J., in Carter v. Beckwith,, 104 N. Y., 239 ; 5 St. Rep., 617 , says: “After such an unqualified refusal the plaintiff was-not bound to go further before commencing his action in order to-entitle him to costs.” It is not necessary to obtain or present a statement of the facts certified by the judge before whom the-trial took place in this court. Section 3343, Code of Civil Procedure, declares what are superior city courts. This court is not. one of them. The administratrix having been exempted from, the payment of costs personally and is not therefore injured, cannot be heard to complain of the • absence of the certificate of the-judge who tried the case. Meltzer v. Doll, 91 N. Y., 374 .

The order should be affirmed, without costs.

Ehrlich, Ch. J., and McG-own, J., concur.