Degener v. Underwood

Superior Court of New York

Degener v. Underwood

30 N.Y.S. 399, 31 Abb. N. Cas. 479

CourtThe Superior Court of the City of New York and Buffalo

DecidedMay 15, 1894

StatusPublished

This text of 30 N.Y.S. 399 (Degener v. Underwood) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Degener v. Underwood, 30 N.Y.S. 399, 31 Abb. N. Cas. 479 (superctny 1894).

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Opinion

McADAM, J.

This court in Becker v. Railway Co., 30 N. Y. Supp. 400, following Palmer v. De Witt, 42 How. Pr. 466, and Powell v. Railroad Co. (Sup.) 3 N. Y. Supp. 763, held that but one term fee can be charged on an appeal to the court of appeals for each calendar year, and that the- term at which the cause is argued or otherwise disposed of must be excluded. The cause went on the calendar in 1893, and was argued in 1894; so that but one term fee, instead of three, was taxable. Twenty dollars must therefore come off the biU.

The court of appeals affirmed the judgment of the general term, with costs and 5 per cent, damages. 37 N. E. 567. This percentage should be computed upon the amount of both the judgments below, but not upon the interest accrued upon the judgments. Adams v. [400]*400Perkins, 25 How. Pr. 368. The respondent exacted a percentage on the interest, as well as the damages awarded by the original judgment; and this excess, after charging interest on the general term judgment, must be deducted. If the respondent returns to the appellants’ attorney the.$20 aforesaid and the excess of interest, as before suggested, the application for a retaxation will be denied; otherwise, it will be granted, with costs. Settle order on notice, and specify in the order to be settled the specific amounts to be returned.

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McADAM, J.

This court in Becker v. Railway Co., 30 N. Y. Supp. 400, following Palmer v. De Witt, 42 How. Pr. 466, and Powell v. Railroad Co. (Sup.) 3 N. Y. Supp. 763, held that but one term fee can be charged on an appeal to the court of appeals for each calendar year, and that the- term at which the cause is argued or otherwise disposed of must be excluded. The cause went on the calendar in 1893, and was argued in 1894; so that but one term fee, instead of three, was taxable. Twenty dollars must therefore come off the biU.

The court of appeals affirmed the judgment of the general term, with costs and 5 per cent, damages. 37 N. E. 567. This percentage should be computed upon the amount of both the judgments below, but not upon the interest accrued upon the judgments. Adams v. [400]*400Perkins, 25 How. Pr. 368. The respondent exacted a percentage on the interest, as well as the damages awarded by the original judgment; and this excess, after charging interest on the general term judgment, must be deducted. If the respondent returns to the appellants’ attorney the.$20 aforesaid and the excess of interest, as before suggested, the application for a retaxation will be denied; otherwise, it will be granted, with costs. Settle order on notice, and specify in the order to be settled the specific amounts to be returned.

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Bluebook (online)

30 N.Y.S. 399, 31 Abb. N. Cas. 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/degener-v-underwood-superctny-1894.

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