McDermott v. Hennesy

New York Supreme Court

McDermott v. Hennesy

16 N.Y. Sup. Ct. 59

DecidedNovember 15, 1876

StatusPublished

This text of 16 N.Y. Sup. Ct. 59 (McDermott v. Hennesy) 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

McDermott v. Hennesy, 16 N.Y. Sup. Ct. 59 (N.Y. Super. Ct. 1876).

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Opinion

Per Guriam:

Without deciding whether this application should be called a special proceeding or a proceeding in the foreclosure action, we are satisfied that in either case the views expressed by Judge Balcom, in Elwell v. Robbins (43 How., 108), as to costs, are correct. There is no right to grant an extra allowance. (See also, Rens. and Sara. R. R. Co. v. Davis, 55 N. Y., 145.) The only costs which can be allowed are those particularly specified in the Code, viz., motion fees and referee’s fees. The hearing before the referee, is not a trial.

The only costs, therefore, which can be allowed are ten dollars costs of the motion to confirm the referee’s report and his fees, and ten dollars costs of order appointing referee, if that was allowed in that order. The order appealed from must be modified accordingly.

The question involved is, perhaps, new, and no costs of the appeal are allowed to either party.

Present — LeabNEd, P. J., Booees and BoaedmaN, JJ.

Orders reversed and order granted to be settled by LeaeNed, P. J., as per his memorandum. No costs of appeal.

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Per Guriam:

Without deciding whether this application should be called a special proceeding or a proceeding in the foreclosure action, we are satisfied that in either case the views expressed by Judge Balcom, in Elwell v. Robbins (43 How., 108), as to costs, are correct. There is no right to grant an extra allowance. (See also, Rens. and Sara. R. R. Co. v. Davis, 55 N. Y., 145.) The only costs which can be allowed are those particularly specified in the Code, viz., motion fees and referee’s fees. The hearing before the referee, is not a trial.

The only costs, therefore, which can be allowed are ten dollars costs of the motion to confirm the referee’s report and his fees, and ten dollars costs of order appointing referee, if that was allowed in that order. The order appealed from must be modified accordingly.

The question involved is, perhaps, new, and no costs of the appeal are allowed to either party.

Present — LeabNEd, P. J., Booees and BoaedmaN, JJ.

Orders reversed and order granted to be settled by LeaeNed, P. J., as per his memorandum. No costs of appeal.

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16 N.Y. Sup. Ct. 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-hennesy-nysupct-1876.

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