Seneca Nation of Indians v. Hawley — 39 N.Y. Sup. Ct. 288

Majority

p. 288

THE SENECA NATION OF INDIANS, Respondent, v. IRA HAWLEY, Appellant.

Headnote

Coats — when coats paid m pursuance of an order cannot he taxed by the prn'ty paying them after the recovery of a judgment by him,

At the trial the defendant was allowed upon his own motion to amend his answer upon paying to the plaintiff the costs after, notice of trial, including fees for the terms the case had been upon the calendar.' These costs were paid, the answer amended, and thereafter a verdict rendered in favor of the defendant which entitled him to costs.

Held, that he could not include in his costs, the costs already paid to the plaintiff in pursuance of the said order.

Ravemeyer v. Ravemeyer ( 63 How., 476 ) distinguished; Donovan v. The Boa/rd of Education (1 Civil Pro. B., 311, note) overruled.

Appeal from an order of the Cattaraugus Special Term denying a motion for a retaxation of costs.

Allen <& Thrasher, for the appellant.

B. F. Gongdon, for the- respondent.

At the trial the defendant was permitted on his own motion to amend his answer, on payment of plaintiff’s costs accrued after the original answer was served. Those costs being the costs after notice of trial, and the term fees for the terms at which the case had been on the calendar, were paid accordingly by the defendant to the plaintiff and the answer was amended. Subsequently the cause was tried and a verdict was rendered which entitled the defendant to costs. He included in his bill the same term fees and costs, after notice,of trial, which he had paid as a condition of his leave to

p. 289

amend. The clerk disallowed those items on taxation and his action was affirmed by the Special Term.

The disallowance was proper. The items in question, were finally disposed of by the order allowing the defendant to amend, he haring availed himself of the privilege granted by the order. 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. (Provost v. Farrell, 13 Hun, 303 .) The cases of Havemeyer v. Havemeyer ( 62 How., 476 ) and Donovan v. The Board of Education (1 Civil Pro. R., 311, note) are cited by the appellant’s counsel. The first of them was disposed of upon facts peculiar to itself, which do not exist in this case. We are not prepared to concur with the case of Donovan (decided at a Special Term of the New York Superior Court) so far as it conflicts with the views above expressed.

Order affirmed, with ten dollars costs and disbursements.

Hardin and Baekke, JJ., concurred.

So ordered.