Low v. Vrooman

15 Johns. 238

• Court: New York Supreme Court
• Decided: May 15, 1818
• Status: Published

Opinion

Per Curiam.

. The reference to the surveyors was by mutual consent of the parties, and the costs attending the survey were not such as could be taxed in the bill of costs, without some special agreement on the subject. The evidence on the question, whether the expenses were to be borne mutually by the parties, is rather doubtful, but such a conclusion may very fairly be drawn from the circumstances given in evidence, and it was so understood by one of the surveyors. It was an expense incurred for the mutual benefit of both, and it is just and equitable that each one should bear his proportion. Had this been a charge which might have been taxed against the losing party, and which v had been struck out of the hill of costs improperly, the remedy ought to have been by appeal from the taxation; but not being such a charge, there is no remedy, except by action. We cannot see that any principle of law has been violated, and the real and substantial justice of the case being in support of the judgment, it must be affirmed.

Judgment affirmed.

(a)

If no directions are given respecting the costs of an award, they are to be paid by both parties equally. Grove v. Cox, 1 Taunt. 165.