Landon v. Van Etten — 64 N.Y. Sup. Ct. 122

Majority

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GEORGE I. LANDON, as Receiver of the BOWLING GREEN SAVINGS BANK, Respondent, v. JAMES VAN ETTEN and SMITTER V. TRIPP, Appellants.

Headnote

Additional allowance, wherre a judgment is lessfavorable than an offer.

Where, upon the trial of an action, it appears that the defendant has made an offer of judgment more favorable to the plaintiff than his recovery, the defendant is. not only entitled to recover his costs but may be given an additional allowance..

Appeal by the defendants from an order, entered in the office-of the clerk of the county of New York, and dated the 4th day of February, 1890, which order denied the defendants’ motion for an additional allowance in the above-entitled action.

L. GodJcin, for the appellants.

A. Cameron, for the respondent.

The defendants’ offer of judgment was better than the plaintiff’s recovery. They are, therefore, the prevailing party and entitled to-costs. The learned judge at Special Term thought them entitled also to an additional allowance, but felt constrained to refuse to grant it. from want of power, his judgment in that respect yielding to the decision made in Magnin v. Dinsmore ( 47 How. Pr., 11 ) to that effect. That case does not, however, discuss the question which presents itself in limine, namely, what is meant by an allowance ?’ Justice Woodruff, in Brady v. Durbrow (2 E. D. Smith, 78, 89), arrived at the conclusion, upon examination of the question, that the allowance was of additional costs, and that the phrase must be so-interpreted.

This result is satisfactory, the chapter relating to the subject being entitled in the Code “ Taxing amount of costs,” and articles 1 and 2 under the title are “ Sums allowed as costs ”— “ Taxation of costs.” Whatever is given by way of indemnity under the statute is within the designation costs, and being costs, the party entitled to them, as provided by the Code, is also entitled to those given in addition to the established sums. If the prevailing party, for example, is entitled to costs, an allowance, meaning additional costs, may be given him

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to such extent as may be determined on a proper application showing the right to them to exist.

It is unnecessary, however, to pursue this subject, inasmuch as the-question has already been considered and determined by this court in Commissioners of Pilots v. Spofford ( 3 Hun, 57 ). The proposition asserted and maintained by that case is, where either party is entitled to costs, such costs are not restricted to those given expressly, but include the allowance if a proper case be made for them. This-decision was predicate of the sections of the old Code, which are, however, substantially the same as those of the present Code. The-order appealed from should, therefore, be reversed and the motion be remitted for consideration. Ordered accordingly, with ten dollars-costs and disbursements of this appeal. In expressing these views we must not be understood as intimating an opinion as to the propriety of granting any allowance.

Yan Brunt, P. J., and Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the-motion remitted for consideration.