Baker v. Codding — 52 N.Y. St. Rep. 416

Majority

p. 416

Ebenezer T. Baker, App'lt, v. D. Edgar Codding et al., Resp'ts.^[1]

(New York Common Pleas, General Term,

Filed May 1, 1893.)

Headnote

-Costs—Retaxation—Does not aspect judgment.

A relaxation of costs does not affect the judgment for costs which were taxed without notice, and the judgment cannot be modified by deducting the sums disallowed on the relaxation, but such sums are to be credited on the execution when issued.

Appeal from two several orders of the general term of the city court of New York, each affirming an order made at special term which denied plaintiff’s motion to modify or correct a judgment for costs entered in defendant’s favor by reducing the amount to the costs as adjusted upon the relaxation thereof.

Leonard S. Wheeler, for app’lt; Jno. B. Adger Mullally, for resp’ts.

Upon defendants’ appeal from a judgment for plaintiff, the general term of the court below directed its reversal and awarded judgment absolute for defendants, with costs. The costs were taxed by the clerk without notice to plaintiff’s attorney and judgment for the amount was entered in defendants’ favor. Thereafter defendants caused notice of retaxation to be given as required by § 8264 of the Code of Civil Procedure. From the clerk’s taxation the parties appealed to the justice at special term, who disallowed certain items, and thereupon the costs were again taxed by the clerk. Plaintiff then -moved that the judgment be modified or corrected by reducing it to the amount of costs as last taxed; and from the orders denying the motions, and the orders of the general term affirming the first mentioned orders, this appeal is taken.

By § 3262 of the Code of Civil Procedure it is provided that all costs, except interlocutory costs and such as may be awarded in special proceedings, must be taxed by the clerk. Section 3264 authorizes the court in its discretion, upon application of a party interested, to direct a retaxation of costs at any time, and § 3265 allows the court to review a taxation or relaxation of costs upon a motion for a new taxation. The section last cited gives an order made upon a motion for a neiu taxation, which allows or disallows any item objected to before the taxing officer, the effect of a new taxation. A relaxation of costs either affirms, modifies or ■corrects the taxation had. A new taxation necessarily implies that the former taxation is vacated or annulled. Murdock v. Adams, 10 Hun, 566 . The new taxation supersedes a former taxation.

In Hewitt v. City Mills, 49 St. Rep., 335 , the court of appeals held that a judgment entered for the costs of the action which were taxed without notice is not affected by a subsequent relaxation of the costs, except that any sum which was disallowed upon such retaxation must be credited upon the execution, or other mandate, issued to enforce the judgment as directed by § 3264 of the Code of Civil Procedure; and that the time within which an

p. 417

appeal from the judgment must be taken cannot be extended by a relaxation of the costs whether they be reduced or not. The judgment remains as it was entered.

What the effect of a new taxation of the costs pursuant to the provisions of § 3265 of the Code of Civil Procedure is upon a judgment previously entered, is a question which cannot arise on this appeal, since the record doos not disclose that a motion therefor was made, or that a new taxation was directed, or the former taxation set aside.

We have not failed to observe appellant’s contention that unless the judgment is reduced he will be compelled to give security for more than is due should he wish to appeal therefrom. But the right of appeal is at all times subject to legislative discretion. Ryan v. Waule, 63 N. Y., 57 ; Matter of Palmer, 40 id., 561. Hence if appellant desires to avail himself of the remedy he must assume the burdens which it imposes.

The orders appealed from are affirmed, with the costs of one appeal;

Pbyob, J., concurs.