People ex rel. Lee v. Village of College Point — 96 N.Y. Sup. Ct. 194

Majority

p. 194

The People of the State of New York ex rel. Robert Lee and Others, Respondents, v. The Village of College Point and Others, Appellants.

Headnote

Gertiorari — costs, when not taxable.

An order of tlie General Term, made upon the return to a writ of certiorari issued to review an assessment, confirmed the assessment under review with costs to the defendants and against the relators to he taxed. Defendants sought to include in their hill of costs the sum of fifty dollars.

Held, that although that sum was allowable in the discretion of the court, yet, as that discretion had not been exercised, the defendants acquired no right to insert the same therein.

Appeal by the defendants, The Village of College Point and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 16th day of April, 1895, retaxing the costs in the

p. 195

above-entitled action and disallowing items of costs taxed, and which reduces the amount of the judgment entered in said action.

The order of the General Term which provided for costs in this action was as follows: “ Ordered, that the determination and proceedings of said defendants in opening and otherwise improving said Third avenue, between Eleventh and Thirteenth streets in said village, and the levying of the assessment therefor, and which were sought to be reviewed herein, be and the same are hereby in all respects confirmed, with costs to the defendants and against the relators to be taxed.”

John J. Gleason, for the appellants.

O. B. Gould, for the respondents.

This is an appeal from an order of the Special Term reversing the taxation of fifty dollars as costs to the defendants, which was allowed by the clerk. The proceeding was by certiorari, and the only question presented by the appeal now before us is whether, under the order of the General Term confirming their proceedings with costs to be taxed, the defendants could include in their bill of costs the sum of fifty dollars. That sum was allowable in the discretion of the court, but as that discretion was not exercised, the defendants acquired no right to insert the same in their bill of costs.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.