Louisville Lumber Co. v. Smith

154 A.D. 386, 139 N.Y.S. 357, 1912 N.Y. App. Div. LEXIS 9949

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1912
• Status: Published

Opinion

Betts, J.:

After the commencement of the action the plaintiff was required upon application of the defendants to file an undertaking as security for costs, on the ground that it was a foreign corporation. For this; undertaking the plaintiff paid ten dollars to a surety company. On the trial the plaintiff recovered a verdict and judgment was duly entered thereon. The plaintiff taxed its costs including therein as a disbursement the ten dollars paid to said surety company. The item in the costs as taxed without notice was “Pd. surety company for undertaking $10.00.”

After such taxation the plaintiff gave, notice of retaxation before the clerk when the defendants’ attorneys appeared before the clerk and objected to the taxation of this item on the ground that it was not a proper item to charge said defendants with and that it should not be taxed as it was improperly contained among said disbursements as taxed. The plaintiff’s attorney stated in support of such bill that the amount as charged was for the amount paid for the undertaking given as per an order of that court as security for costs as required under section 3268 of the Code of Civil Procedure where a foreign corporation brings an action. The objection to this item of ten dollars was overruled by the clerk and it was retaxed as originally taxed. Thereupon the defendants’ attorneys noticed a motion as to such item for an order directing a retaxation of such item on the ground that it was improperly retaxed against the defendant. This motion was denied by the Special Term and from that order this appeal is taken.

The decision here is governed by our decision in Shipman v. Treadwell (150 App. Div. 895), decided in March of this year, wherein a precisely similar item was disallowed as a taxable disbursement, for the reason that there was no statutory authority for the clerk to tax the same. No opinion was filed in that case.

Costs were not known to the common law, and, in order to recover, the parties seeking to recover the same must point to some statute authorizing the clerk to tax and allow such items. (Equitable Life Assurance Society v. Hughes, 125 N. Y. 106; McKuskie v. Hendrickson, 128 id. 555; Stevens v. Central National Bank, 168 id. 560, 566; Miller v. Bush, 29 App. Div. 117.)

Practically the same question has been decided in Bick v. Reese (52 Hun, 125), where the plaintiff in an action in replevin had paid a premium to the American Surety Company for its bond and the court held that the same could not be taxed. It is a prerequisite for maintaining an action of replevin that a bond should be filed. A surety company bond, however, is not required. It is also necessary when required by the defendant to secure the defendant from possible loss, and as a protection tó our citizens against non-residents who use our courts for the purpose of asserting or defending claims, that an undertaking should be filed or cash be deposited, so that the case of Bick v. Reese (supra) and this case are the same in principle.

It was also held in Lee Injector Mfg. Co. v. Penherthy Injector Co. (109 Fed. Rep. 964) that the sum of ten dollars and fifty cents paid a surety company for furnishing appeal bond must be disallowed on a taxation of costs, as there is no authority for taxing such an item.

The court is pointed to no. authority by the plaintiff in this case for the taxation of this item, and I think the same should be disallowed.

It follows that the order appealed from must be reversed, with ten dollars costs to appellants.

All concurred.

Order reversed, -with ten dollars costs and disbursements, and . motion granted as per opinion, without costs.