Decker v. Gardner

1 Seld. Notes 56

Opinion

Decker, in 1850, commenced an action in the Superior Court of the city of Hew York against Gardner, and one Matthews, for the alleged wrongful taking and conversion by them of a promissory note. The defendants answered separately, denying the allegations of the complaint. On the trial, the plaintiff recovered against the defendant Matthews upwards of $2,000, and the defendant Gardner obtained a verdict in his favor. The defendant Gardner moved at a special term for costs, and for an extra allowance under sections 308 and 309 of the Code of 1849. The court decided that he was entitled to costs, as a matter of right, under section 305 of the Code, and also made him an extra allowance of $100. It did not appear from the record, otherwise than by the fact of such allowance, that the court decided that the case was difficult or extraordinary, or that the prosecution had been unreasonably conducted. The Superior Court at general term affirmed that decision, and the plaintiff appealed.

This court affirmed the judgment; holding, that the defendant Gardner was entitled to costs, as a matter of right, under section 305 of the Code.

That the extra allowance was a matter of discretion, both as to the propriety of making any allowance and as to the amount, within the limits prescribed in the statute, and therefore not subject to review on appeal.

That it was not necessary for the record to show that the case was adjudged to have been difficult or extraordinary, or that the prosecution had been unreasonably conducted, because the allowance by a court of general jurisdiction was evidence of itself, until the contrary should be shown, that a case existed requiring it to be made; and that, if the facts were spread out upon the record, this court would not review them to determine whether the court below had or had not properly exercised its discretion.

(S. C., 8 N. Y., 29.)