Hyperlawhypertext legal database Degener v. Underwood 62 N.Y. St. Rep. 121

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Degener v. Underwood

62 N.Y. St. Rep. 121 Court N.Y. Super. Ct. English

Delivered by McAdam, J.

Contents

Majority

p. 121
Frederick L. Degener, Pl'ff, v. John T. Underwood et al., Def’ts.
(New York Superior Court, Special Term,
Filed May, 1894.)

Headnote

1. Costs—Term fee—Court of appeals.
But one term-fee can be charged for each calendar year on an appeal to the court of appeals, excluding the term at which it is argued or otherwise disposed of.
2. Same—Damages of five per cent.
Damages of five per cent, allowed on an affirmance by the court of ap- ■ peals, should be computed on the principal amount of both judgments below.
Motion for re-taxation of costs.
James A. Hudson, for the motion; J. E. Hidden, opposed.

This court in Becker v. Railway Co., 30 N. Y. Supp. 400 , following Palmer v. De Witt, 42 How. Pr. 466 , and Powell v. N. Y. C. & H. R. R. R. Co., 3 N. Y. Supp. 763 , held that but one term fee can be charged on an appeal to the court of appeals for each calendar year, and that the term at which the cause is argued or otherwise disposed of must be excluded. The cause went on the calendar in 1893, and was. argued in 1894; so that but one term fee, instead of three, was taxable. Twenty dollars must therefore come off the bill.

The court of appeals affirmed the judgment of the general term, with costs and five per cent, damages. This percentage should be computed upon the amount of both the judgments below, but not upon the interest accrued upon the judgments, Adams v. Perkins, 25 How. Pr. 368 . The respondent exacted a percentage on the interest, as -well as the damages awarded by the original judgment; and this excess, after charging interest on the general term judgment, must be deducted. . If the respondent returns to the appellants’ attorney the $20 aforesaid and the excess of'interest, as before suggested, the application for a retaxation will be denied; otherwise it will be granted, with costs. Settle order on notice, and specify in the order to be settled the specific amounts to be returned.

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