Savage v. Gould

60 How. Pr. 255

Opinion

Ingalls, J.

In the above matter the adult respondents appeared by Mr. Tremain, and the infants by Mr. Hamilton, as their guardian ad litem. The decree of the surrogate was affirmed by the general term with costs. Tremain and Hamilton are not partners, nor in any manner connected in business, nor do they occupy the same office, and there is no claim of collusion or of a device to insure the costs of litigation by their separate appearances. It was quite proper that the infants should be represented by a person other than the attorney for the adult parties. Hnder such a state of facts it was justifiable to allow the two bills of costs, and herein the clerk, in this respect, committed no error in adjusting them (The Bridgeport F. & M. Ins. Co. agt. Wilson, 20 How. Pr., p. 511 ; Cullomb agt. Caldwell, 5 How. Pr. Rep., p. 336). As all of the respondents were successful, it did not become necessary to apply to the court for direction in regard to an allowance of costs under subdivision 2, section 306, of Code of Procedure. The court at general term, by its order of affirmance, allowed costs to the respondents without restriction ; and, hence, we conclude that they were to be adjusted according to the rules and practice of this court. The item of ten dollars for preparing amendments to the return, on the appeal, was unauthorized and should not have been included in the costs, as section 307 of the Code of Procedure does not apply to such a case, and as the court had not by its order directed payment for that service, it cannot be included in costs. From the time of the service of the petition of appeal, the proceeding so far, at least as the question of costs are concerned, is to be regarded in the supreme court (Dupuy agt. Wurts, 47 How. Pr., p. 225; Seguine agt. Seguine, 3 Abbott’s Rep. [N. S.], 442; Hawley agt. Donnelley, 8 Paige Chan. Rep., 415). Consequently it was proper to include the item of ten dollars for all proceedings before notice of trial, also the item of fifteen dollars for all proceedings after notice and before trial. We perceive no substantial reason why those items should not be allowed, as the nature of the services rendered is consistent with the provision of the Code in that respect. The appeal necessitated the trial of an issue of law, and hence the successful party became entitled to a trial fee of twenty dollars. The argument of the appeal was postponed, at the instance of the appellant and by order of the court, one term', and' therefore the term fee of ten dollars was properly taxed. The adjustment of costs by the clerk seems to have- been- correct with one exception, viz;, the item of ten dbllars for preparing-amendments. The- costs must be readjusted' in accordance with the foregoingand no- costs of this appeal is allowed' to> either party.