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Martin v. McCormick

3 N.Y. Super. Ct. 755 1 Sandf. 755 Court N.Y. Super. Ct. Decision date 1851-01-11 English

Delivered by Sahdford, J.

Contents

Majority

p. 755
Martin v. McCormick.

Headnote

The allowance in addition to costs, permitted by § 308 of the code, cannot be made after the entry of judgment.
No allowance can be made under that section, to the prevailing party, on an appeal from a judgment at the special term.
January 11, 1851.
IN this case judgment was rendered in favor of the defendant after a trial at the special term. The plaintiff appealed to the general term, wdiere the judgment was affirmed. The defendant now moves for an allowance, in addition to the costs, under the three hundred and eighth section of the code, both in the court below and on the appeal. A similar motion in another suit, for an allowance on a judgment entered at the special term, was argued at the same time.
8. F. Cowdrey, for the defendant.
G. A. Halsey, for the plaintiffs.

(with the concurrence of the Chief Justice and Paine, J.,) decided that, after judgment entered, It was too late for the prevailing party to apply for an allowance under this provision of the code. The amount allowed is to go into the judgment as a part of the “ charges for costs,’” mentioned in § 311.

The provision in § 308 does not apply to judgments rendered on appeal.

Motion denied.[1]

(a) (a) To the latter proposition is 2 Comst. 570, in the court of appeals, and to both ⅛ a decision of Parker, J., in the supreme court, third district, 5 Howard’s Pr. R. 242.