Marx v. Gross — 51 N.Y. St. Rep. 92

Majority

p. 92

Frederick Marx et al., App’lts, v. Eugene A. Gross et al., Resp’ts.

(New York Superior Court, General Term,

Filed March 6, 1893.)

Headnote

Costs — Taxation.

Where a party obtains leave to withdraw a juror and amend on payment of costs and disbursements to date, the order is a final adjudication as to the right of the parties as to those items of costs, and they cannot he again taxed in favor of either party.

Appeal from order denying motion for retaxation of costs and affirming the taxation made by the clerk.

George A. Black, for pl’ffs; Foster & Thomson, for def’ts.

During the trial the defendant obtained leave to withdraw a juror upon paying the costs and disbursements of the action up to date. He paid the costs and amended. A final judgment was obtained by the plaintiffs, who presented a bill of costs from which, upon taxation, the clerk struck all items included in the costs paid as a condition of obtaining leave to amend.

From an order made, at special term affirming the taxation this appeal is taken. The clerk’s action was proper. The items in question were finally disposed of by the order allowing the defendant to amend, he having paid the costs and amended. The order was an adjudication that the items covered by it belonged to the plaintiff ; they could not be again taxed in favor of either party. Seneca Nation v. Hawley, 32 Hun, 288 ; Provost v. Farrell, 13 id., 303 .

Order affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., and Gildersleeve, J., concur.