Crary v. Norwood

5 Abb. Pr. 219

• Court: New York Supreme Court
• Decided: September 15, 1857
• Status: Published

Opinion

Balcom, J.

The defendant is entitled to the costs which have been occasioned by the demurrer, and no more.

It was held in the case of The Supervisors of Onondaga v. Briggs (3 Den., 173), that where the rate of compensation for attorneys and counsellors is changed by the Legislature during the progress of a suit, the costs of such suit are to be taxed according to the statute in force at its termination. In Moore a. Westervelt (14 How. Pr. R., 279), the Superior Court of New York city held that the plaintiff was entitled to have his costs adjusted according to the Code as it existed at the time of the verdict, as respected all items prior to that date. The same principle was held at the Monroe special term by Justice Smith, in June last, in Steward a. Lamoreaux (5 Abbotts’ Pr. R., 14). And within the principle settled by these adjudications, the items and amount of the defendant’s costs, occasioned by the plaintiff’s demurrer in this action, must be determined by the Code as it stood when the decision overruling the demurrer was made.

The defendant is not entitled to $10 costs for proceedings before notice of trial, because that item was not occasioned by the demurrer (3 Sandf., 756), but by section 307 of the Code, as it was amended by the act of April 17, 1857, the defendant is entitled to $10, “ for all subsequent proceedings before trial,” and $15, “ for the trial of the issue of law,” making $25 in all. (Hendricks a. Bouck, 2 Abbotts’ Pr. R., 360; Nellis a. DeForest, 6 How. Pr. R., 413; 3 Sandf., 756.)

Mo fee for the clerk on the trial nor any disbursements have been claimed.