Moore v. Gould

54 How. Pr. 500

• Court: New York Court of Common Pleas
• Decided: February 15, 1878
• Status: Published

Opinion

Robinson, J.

Plaintiff having, on appeal to this court from a- judgment recovered against him in a district court, obtained a reversal of that judgment, the question presented on this appeal from the clerk’s taxation was whether he is entitled to the-twelve dollars costs allowed him as extra costs which he would have recovered in the court below had the judgment been in his favor. The clerk allowed it on taxation and defendant appealed. The plaintiff’s “demand” was “ for the recovery of fifty dollars or more,” and the seventieth section of the district court act in such case applies. Sections 3 and 4 of the marine court act of July 12, 1853, which allows as extra costs such as those sections prescribe, and the third section of the latter act allows twelve dollars when a trial has been had (as was the case here); but the seventieth section has this further provision: “But the plaintiff shall not recover such extra costs unless judgment be rendered in his favor for fifty dollars or more.” This court, by a reversal of the judgment, necessarily determined that upon the case presented on the appeal the plaintiff was entitled to some recovery, but they did not decide that it ought to be “ fifty dollars or more ”; nor did it appear conclusively from the case on appeal what sum, if any, beyond nominal damages, was in law properly assessable upon the proof he adduced. The majority of the judges at general term were of the opinion that the plaintiff was entitled to recover? not brokers’ commissions to be calculated on any specific amount, but what his services were reasonably worth. The case presents no certain basis establishing that they were fully worth at least fifty dollars. Under these circumstances the allowance of the extra costs of twelve dollars was erroneous, and this item must be reduced to ordinary costs allowed by section 67 of the district court act.