Jerome v. Boeram

1 Wend. 293

• Court: New York Supreme Court
• Decided: October 15, 1828
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The taxation of four bills of costs was erroneous. The motion of the defendant having been resisted on one set of papers, there should have been but one bill taxed; but this objection ought to have been made before the taxing officer, (1 Cowen, 49, ib. 591,) and the motion for relaxation ought to have been made at the next term.

The demand of costs was regularly made. It is not necessary in such cases that a copy of the power of attorney should be served, nor need a certfied copy of the rule for costs be delivered. A copy of the certified copy was served, with a copy of the taxed bill, and the certified copy, with the taxed Mil and power of attorney, were shewn. This was all that was necessary. '

The costs of the attachment ought properly to have been taxed in the costs of resisting the motion in anticipation of the services, as there is no other opportunity for taxing them, though they cannot be demanded unless the proceedings are had, and the services performed. It is not allowable that it should be left to the discretion of the attorney to charge such costs as he may think proper. The plaintiff therefore, was irregular in this respect.

The preliminary objection, however, to this motion, is fatal. The notice should have been given in the name of the attorney originally retained, or a regular substitution shewn. For that cause, the motion is denied with costs.

Motion denied.