Crotty v. De Dion-Bouton Motorette Co.

92 N.Y.S. 619

Opinion

MILLER, J.

This is an appeal from an order directing that plaintiff’s costs be retaxed by disallowing a trial fee of $30 and a term fee of $10 for a term at which an inquest was taken, the default being subsequently opened. Upon the papers before the clerk, the plaintiff was entitled to tax these two items. On the motion for retaxation at Special Term, the defendant was permitted to read the order opening the default, and an affidavit to the effect that the $40, payment of which was imposed as a condition of opening the default, was stated by the justice granting the order to be intended to cover the trial and term fee which is disallowed by the order appealed from. The plaintiff objected to the reading of these papers.

On a motion for a retaxation, the parties should be confined to the papers used before the clerk. As the plaintiff was entitled to have the items taxed upon the papers before the clerk, it is unnecessary to determine the effect of the additional facts presented by the order and affidavit, reading of which-was objected to.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.