Everson v. Hinds

2 Barb. Ch. 117, 1847 N.Y. LEXIS 260

Opinion

The Chancellor.

The order, under which the taxation took place, had.dips.ctffl,the,defendant ;Hinds ,to pay the complainant his costs upon the exceptions allowed by the master. 'And .if tbe. order was-irregular, because the.complainant was not entitled to any,costs whatever, th.e proper remedy of the jrftp .fo.anpLy^o^hp-cpu^t t|p^t (fi§ide tbe^pjpr ¡for ihiegularity. Ail ftbat tbe-taxmg.pfficer was .authorised ,to-de - cide, was -how much of the costs of the.exceptions, and of the .proceedings thereon, were taxable.under the provisions of the ft3d rule .of the.-cpuA-

The order, however, was not irregular. For the rule provides .that the party excepting shall have the costs.of the exceptions Which are submitted to, and of those which are finally allowed after reference ..to ,a piaster. If ere -tbe second, and - third .exceptions were Anally allowed after .reference thereof to.a..master. The costs of drawing, perusing and signing, engrossing, copying, filing, and serving those two exceptions, were thérefore allowable, under the express terms of the„-63d rule. And the complainant was also entitled tó the costs of the order to expunge ■the impertinent, matter and the expenses of .executing that order, and recovering his costs, under the provisions .of the 57th rule; as a part of the necessary proceedings upon the second and .third exceptions, after they had been finally -allowed upon the reference.

-The costs upon the reference, to which neither party is entitled, as against .the other, unless -he finally succeeds as to all the exceptions referred, are the master’s fees upon the reference, and the'solicitor’s and counsel fees, and other expenses, between the perfecting of the exceptions and the filing of the master’s report on the reference; including postages and other disbursements. All these have been excluded in the taxation of the complainant’s bill; as I understand the case agreed upon by the parties. The taxation.was therefore right; and it is unnecessary to consider the objection that a .relaxation was not applied for within a reasonable time.

The motion for a retaxation must be denied, with $7 costs