Buell v. Gay

13 How. Pr. 31

Opinion

Harris, Justice.

The Code allows to the plaintiff for the trial of issues of law, if separate from the trial of issues of fact, fifteen dollars. And yet, in this case, where there has been just such a trial, the clerk has allowed to the plaintiff thirty dollars. It allows to the plaintiff, when successful, a fee of ten dollars for every circuit or term at which the cause is neces sarily on the calendar, &c. Here the plaintiff has been allowed twenty dollars for every such circuit or term—and so of other services. The effect of such a rule of taxation would be to give to a plaintiff as many bills of costs as there might be defendants appearing by different attorneys. The provisions of the Code relating to costs, cannot be so construed as to produce this effect. Where there are several defendants, and the court, as it is authorized to do by the 274th section of the Code, renders judgment against one, and allows the action to proceed against others, the plaintiff may be entitled to several bills of costs; but where the plaintiff recovers but one judgment, however numerous the defendants, or the defences or issues, he can have but one bill of costs.

I am aware that in Comstock agt. Halleck, (4 Sand. 671,) where, as in this case, the plaintiff succeeded upon issues of law against defendants who appeared separately, it was held, by the superior court of New-York, that he might recover a separate bill of costs against each defendant. I have the highest respect for the decisions of that very learned court; but this decision, it seems to me, cannot be defended. It gives to the plaintiff what the law has not awarded to him. It declares, in effect, that he may recover the several fees allowed by the Code as costs, as many times over as there are distinct issues made by the pleadings. The language of the legislature cannot be made to bear this construction. It is declared by the 307th section of the Code, that when the plaintiff recovers costs at all, he shall be allowed a specified fee for all proceedings before notice of trial, and another for all subsequent proceedings before trial, and then still another fee for the trial of the issues of law, and another for the trial of issues of fact. No matter how numerous these proceedings or issues may be, but a single fee is allowed for each class of services. The plaintiff cannot, by means of anything the defendants may do, have these fees doubled or trebled in the same judgment.

The taxation of costs in this case, therefore, must be corrected by striking out altogether the bill for $106.37. No costs are to be allowed to either party upon this motion.