Saratoga & Washington Rail Road v. McCoy

7 How. Pr. 190

• Court: New York Supreme Court
• Decided: June 15, 1852
• Status: Published

Opinion

Cady, Justice.

The 1st, 5th and 6th items were disallowed, and the costs adjusted at $37. The defendants move for a readjustment of the costs, and insist that the items which were disallowed, ought to have been allowed.

By the second subdivision of section 307 of the Code, the defendants were entitled to $5 instead of $12, for all the proceedings before notice of trial. By the third subdivision of § 307, the defendants were entitled for trial of an issue of law only, $12 instead of $15.

The 5th item in the bill was properly disallowed, as the cause was improperly noticed for trial at a special term. The most important question is, whether the defendants, as public officers, were entitled to double costs, under 2 R. S. 617, § 24, on the order of the court, granting the plaintiffs leave to amend, or plead over, on payment of costs?

By § 172 of the Code, after a decision of a demurrer, the court may in its discretion, allow the party to plead over, upon such terms as may be just. In this case, such allowance was made upon payment of costs. The terms were in the discretion of the court before whom the demurrer was tried, and the words used by the court do not import double costs; if the court had intended to grant the favor, on the payment of double costs, double costs would have been mentioned. The claim for double costs was properly disallowed. The costs ought to have been adjusted at $39 instead of $37. The defendants asked for more than they were entitled to. The order for readjusting the costs is allowed, without costs to either party.