Stewart v. Schultz

33 How. Pr. 3

• Court: New York Supreme Court
• Decided: March 15, 1867
• Status: Published

Opinion

Ingraham, J.

The clerk was right in refusing to tax more than one bill of costs. The defendants were sued as the Board of Health, and they could not sever. Separate appearances were irregular; as well might the two boards of the common council appear by separate attorneys, as the component parts of the Board of Health.

The statute allowing double costs to public officers sued for official acts is not repealed. (18 N. Y. R. p. 260.) But it was held the party must apply to the court for them. (Graham's Pr. p. 733; 4 Wend. 216.) And the clerk is not to decide whether double costs are to be allowed. A contrary rule is stated by Marvuí, J., in 18 Howard, 468. This is not; however, material, as I do not consider this to be one of the actions specified in the Revised Statutes. (3 B. 8. 5th ed. p. 909.) That applies only to actions brought for an act done, or for an omission to do an act which was his duty.

This was a proceeding to restrain the Board of Health from interfering with the plaintiff. It did not claim any damages or ask for any relief, either for acts done or omitted, but sought to prevent any from being done.

The disbursements taxed prospectively, must be deducted if the costs are paid.

Re-taxation ordered.