New York Belting & Packing Co. v. New Jersey Car Spring & Rubber Co.

32 F. 755, 1887 U.S. App. LEXIS 2349

Opinion

Lacombe, J.

In this case the complainant originally commenced suit in the district of New Jersey by filing a bill of complaint, to which a demurrer was interposed, and which ^vas duly sot down for argument. Subsequently, in view of the condition of the calendar in that district, it was stipulated between the parties that the suit be discontinued therein, and a new one brought in the Southern district of New York, upon similar pleadings, to be filed in this district, the demurrer to be considered as set down for argument. These stipulations were carried out. The demurrer was argued, and overruled the order directing “that complainant recover of the defendant its cost in this suit to he taxed, and the defendant be, and it hereby is, assigned to answer within ten days from date hereafter.”

The bill of costs on the demurrer was duly taxed, including items for filing bill, issuing subpoena, and marshal’s fees for serving subpoena, in the district of New Jersey, and fee for filing the bill in the the Southern district of New York. These were paid by the defendant, and upon the bill of costs now sought to be taxed by it claim is made that these three items, and the expense of printing the brief on demurrer, should be allowed to the defendant. This is, in effect, but an effort to recover from the complainants some part of the very costs which were imposed upon the defendant as a penalty for serving a demurrer, which the court held to he insufficient. They should be disallowed.

The item for docket fee allowed to the defendants should also be disallowed, for the reasons set forth in a memorandum filed this day in Ryan v. Gould, ante, 754.