Marsullo v. Billotto

55 How. Pr. 375

Opinion

MoAdam, J.

The plaintiff recovered a verdict of six cents damages in an action for malicious prosecution, and became entitled to six cents costs (Code of Pro., sec. 304, subd. 4; Laws of 1875, chap. 479, sec. 45, subd. 4), which sum includes (within it) the only disbursements the plaintiff is entitled to receive (Peet agt. Worth, 1 Bosw., 653; Belding agt. Conkling, 4 How., 196; Wheeler agt. Westgate, id., 269; 1 Code Rep. [N. S.], 233; Stone agt. Duffy, 3 Sandf., 761; 4 How., 52; 12 Hun, 383). In Lurtgies agt. Kelly (Daily Register, January 28, 1874) this court at special term correctly held “ that there is no statute entitling a plaintiff to disbursements who is not entitled to full costs,” citing 1 Bosworth, 653 (supra). Indeed, the matter is too well settled to be open to dispute. The special term judge was clearly wrong in disturbing the clerk’s taxation, which was in strict accordance with the settled practice, and his order must, therefore, be reversed, with costs, and the clerk’s taxation allowed to stand as hereby affirmed.

Shea, J., concurred; Sinnott, J., dissenting.