Merritt v. Gosman

2 Denio 186

Opinion

By the Court, Bronson, Ch. J.

The bill was properl taxed by items. On judgments by default the plaintiff is onl v restricted to a gross sum for attorney and counsel fees in two . classes óf cases; first, where the damages are assessed by the clerk; and second, where they are assessed upon a writ of inquiry. (Stat. 1844, p. 403, § 10.) In this action, there was no such assessment of damages; and consequently the case did not come within the statute.

But there were some improper allowances. As no issue of law or fact had been joined, a retaining fee of counsel should not have been taxed; (Stat. 1840, p. 327, § 2;) and for the same reason, the charges for a brief were improper. (§ 3.)

The plaintiffs were not entitled to pay for both the original and the amended declaration. That is charging the expenses of their own error in pleading upon the opposite party. The general rule authorized them to amend as of course, and without costs; but it did not give them costs.

As there was no trial or argument, the drawing of the bill of costs should have been taxed only fifty cents, and the copies at twenty-five cents. (§ 3.)

Motion granted.