RICHARD B. SMITH, Respondent, v. GEORGE W. COOPER, Sheriff, etc., Appellant.Headnote
Costs — right of a public officer, in whose favor a judgment is entered, to increased costs — Code of Civil Procedure, seas. 3229, 3258.Where, in an action brought against a sheriff to! recover a sum of money or a chattel, by reason of some act done by him by virtue of his' office, a final judgment is rendered in his favor, he has an absolute right to the additional costs given by section 3258 of the Code of Civil Procedure. He has the same right to the increased costs as to the single costs given by section 3229.
Appeal from an order made at a Special Term denying the defendant’s motion for “ increased costs; ” the defendant having before moved for and obtained an additional allowance of $300.
The' action was brought to recover of the defendant certain chattels seized and levied upon by him, as sheriff of Suffolk county, under an execution issued to him as such sheriff against the property of one Caleb T. Smith. The jury had rendered a verdict in favor of the defendant. The plaintiff claimed, among other things, that if defendant was legally entitled to “increased costs” under section 3258 of the Code, he should have asked for a certificate under section 3248; that the denial of this motion did not prevent his asking for the certificate, and that the order asked for if granted would have been a nullity.
James H. Stanbrough, for the appellant.
J. La/virence Smith, for the respondent.
Tbe defendant’s right to increased costs is absolute. The Code of Civil Procedure (§ 3258) provides that a defendant in whose favor a final judgment is rendered in an action for a money recovery or for a chattel, “is entitled to recover” the increased costs when the action is brought against a public officer for an act done by him by virtue of his office. The defendant has the same right to increased costs as to single costs. (Sec. 3229.) The form of the application to the court for the increased costs, is immaterial. The papers say that a motion was made for the costs and denied. The Code requires 'a certificate. (Sec. 3248.) The court denied a right to the increased costs, and this .determination should be reversed, with costs and disbursements.
D teman, J., concurred; Pratt, J., not sitting.
Order refusing increased costs reversed, with costs and disbursements.