ASHER GUCKENHEIMER and others, Appellants, v. JACKSON ANGEVINE, Impleaded, etc., Respondent.Headnote
Motion for new trial ■— reargument ordered — two argument fees may he taxed — Motion for relaxation ■ — what laches a defence — when waived by taking an appeal.The plaintiff having recovered a verdict, defendant moved for a new trial on a ' case at Special Term. The justice heard the motion but did not decide it, and ordered a roargument before another justice, by whom the motion was denied. In taxing- costs, plaintiff was allowed two argument fees.
Held, that as the necessity of a rearg-ument was not caused by any act or omission of the plaintiff, such allowance was proper.
Plaintiffs entered judgment upon the verdict, which included the costs, and defendant appealed therefrom, giving an undertaking for their payment. Pour months afterwards defendant made a motion for a retaxation of the costs.
Held, that the defendant was guilty of laches, and that the appeal was a waiver of the right to move for a retaxation.
Appeal from an order of the Erie Special Term, granting a motion made by the defendant for a readjustment of costs.
The plaintiffs recovered a verdict, and the defendant moved for a new trial on a case. The motion was argued and submitted at a Special Term hold by a justice of this court, who did not decide it, but subsequently ordered that it be reargued before another judge, and it was so reargued at a subsequent term, and the motion ivas denied.
The clerk on taxing the costs alloAved the plaintiff tivo argument fees, to which defendant objected. The Special Term held that the plaintiffs were entitled to but one argument fee.
The defendant had allowed four special terms in Erie to pass without moving for retaxation, and no excuse Avas shown for the delay. Ho had also appealed from the judgment more than four months before this motion Avas made.
Delavan F. Clark\ for the appellants.
Horatio FT. Griffith, for the respondent.
It is well-settled that laches in motions for retaxation is a defence. (McLean v. Forward, 1 Cow., 49 ; Morris v. Mullett, 1 Johns. Ch. R., 44.) It appears that the costs had been put into judgment, and that the defendant appealed from the judgment and gave an undertaking for their payment. We think the appeal was a waiver of the right to move for a retaxation; and on the merits vve are of the opinion that the plaintiffs were entitled to the argument fee given by statute for each argument. It does not appear that the necessity for a reargiunent was caused by any act or omission on their part, and two arguments having been in fact made, we think the items were properly taxed.
Order reversed, with ten dollars costs and disbursements.
Talcott, P. J., and IIardiN, J., concurred.