Morell v. Gould

5 Hill & Den. 553

• Court: New York Supreme Court
• Decided: September 15, 1843
• Status: Published

Opinion

By the Court, Nelson, Ch. J.

We are of opinion that the charges for exemplifications and certificates were properly disallowed by the taxing officer. They formed no part of the costs incurred with reference to the particular circuit at which the cause was postponed, like subpoenaing witnesses &c. A nisi prius record was formerly taxable in a case of this kind; but, till the act of 1818, (Sess. Laws of 1818, p. 278, § 4,) it was necessary to make out one for each circuit at which the cause was set down for trial. It seems, however, that the practice of taxing the nisi prius record on putting off a cause, continued after the act referred to. (Van Rensselaer v. Hamilton, 4 Cowen, 539.) This probably arose from, the circumstance that the attention of the corat was not directed to the act; and must be regarded as an exception inadvertently made to the general rule of taxation in like cases.

Motion granted.

(a)

In general, the costs taxable against a defendant under an order obtained by bim putting a canse over the circuit on payment of cogfs, are such as the plaintiff will have to incur again on going down to trial at' a subsequent circuit, and may therefore, perhaps, properly be termed his extra costs. (See Cowen & Hill’s Notes to Phill Ex. 54, 5.)