Kahn v. Schmidt

New York Supreme Court

Kahn v. Schmidt

32 N.Y.S. 33, 83 Hun 541, 90 N.Y. Sup. Ct. 541, 65 N.Y. St. Rep. 190

CourtNew York Supreme Court

DecidedJanuary 18, 1895

StatusPublished

Cited by2 cases

This text of 32 N.Y.S. 33 (Kahn v. Schmidt) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kahn v. Schmidt, 32 N.Y.S. 33, 83 Hun 541, 90 N.Y. Sup. Ct. 541, 65 N.Y. St. Rep. 190 (N.Y. Super. Ct. 1895).

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Opinion

PER CURIAM.

The suit was in equity, and whether costs should be granted was therefore committed to the discretion of the trial court. Costs were not awarded to the prevailing party by the decision, and the entry of a judgment by the clerk awarding costs was in such respect erroneous. The court had not settled the judgment to be entered, and the clerk was wholly without authority to perform that duty for it. As the trial court did not award costs, a different justice, sitting at special term, could not grant an extra [34]*34allowance, for there can be no extra allowance unless the party asking for it is entitled to costs, either by virtue of statute or the decision of the court. Had there been a legal basis for the granting of an extra allowance, we think the motion should have been denied. The evidence relating to the merits of the controversy was not of such a character as to support the relief asked for in the complaint. It should, however, have the effect of persuading the court that in this suit, if ever, costs should be denied the prevailing party. The judgment should be modified by striking out the provision awarding costs. The order granting the extra allowance should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs.

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PER CURIAM.

The suit was in equity, and whether costs should be granted was therefore committed to the discretion of the trial court. Costs were not awarded to the prevailing party by the decision, and the entry of a judgment by the clerk awarding costs was in such respect erroneous. The court had not settled the judgment to be entered, and the clerk was wholly without authority to perform that duty for it. As the trial court did not award costs, a different justice, sitting at special term, could not grant an extra [34]*34allowance, for there can be no extra allowance unless the party asking for it is entitled to costs, either by virtue of statute or the decision of the court. Had there been a legal basis for the granting of an extra allowance, we think the motion should have been denied. The evidence relating to the merits of the controversy was not of such a character as to support the relief asked for in the complaint. It should, however, have the effect of persuading the court that in this suit, if ever, costs should be denied the prevailing party. The judgment should be modified by striking out the provision awarding costs. The order granting the extra allowance should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs.

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Bluebook (online)

32 N.Y.S. 33, 83 Hun 541, 90 N.Y. Sup. Ct. 541, 65 N.Y. St. Rep. 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kahn-v-schmidt-nysupct-1895.

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