Jackson v. Lynch

32 How. Pr. 93

• Court: The Superior Court of New York City
• Decided: February 15, 1866
• Status: Published

Opinion

Monell, J.

The item of ten dollars term fee for December term, was properly allowed. The fee is given for each term not exceeding five, at which the cause is necessarily on the calendar and is not tried, or is postponed by order of the court. Any postponement of a trial can only be by the order, of the court, either upon its own motion, or on motion of one party, or by the' consent of both. On the consent of the parties'in writing, or in open court, an order must be made postponing the trial. This is .usually done informally. Nevertheless it is sufficiently clear, and by order of the court. To avoid the costs against the party ultimately losing, a provision to that effect should be inserted in the order for postponement. H it is not, the term fee will be properly taxable.

I find two cases in this court, decided at special term, "where double disbursements have been allowed to a sheriff succeeding on the trial, and although the question of the right to double costs was not directly passed upon, yet the question was involved in each of these cases, and I am inclined to follow them in this case, without committing myself herein to any opinion, should the question ever come before me at the general term.

There must be a re-taxation, with instructions to the clerk to allow double disbursements.