Alcott v. Phelps

1 Cow. 170

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia.

This section

(e) authorizes you to have all necessary services taxed, at the Common Pleas rate. The nisi prius record is a necessary service, and should have been taxed.

Sampson. For the four last charges, Mr. Breese has allowed us the Common Pleas charges for a judgment and execution. Are we not entitled to our folio in these 2

J. A. Spencer, amicus curios, in the Common^ Pleas, a general continuance is authorized by the statute. In this Court full continuances are required. Do they not, then, come under the provision allowing for necessary services ?

J. C. Spencer, for the defendant, said that as ,to a judgment record and execution, the statute had established a rate for the Common Pleas, but not so as to the nisi prius record, for which nothing ought to be allowed.

Curia. The two first items must be allowed as charged. The four last were correctly taxed by the Clerk. Where the recovery, as here, is under 250 dollars, the charges for similar services are the same in both Courts. Thus, a capias, subpoena, judgment record, and execution, are taxed at the same in both Courts. But where the service here is unknown in the Common Pleas, it is allowed for by the folio, at the Common Pleas rate of charge for folios there, within the clause of the statute allowing for necessary services.

Rule accordingly».

Sec. 4,1 R. L. 23.