Van Rensselaer v. Kidd

5 How. Pr. 242

• Court: New York Supreme Court
• Decided: November 15, 1850
• Status: Published

Opinion

Parker, Justice.

I think the statute giving double costs is repealed by the Code. My reasons are stated in Hallenbeck vs. Miller (4 How. Pr. R. 239).

Nor can I award any extra allowance. That can only be done by the court before which the trial was had or the judgment rendered (Rule 86). So too, the value upon which the per centage must be computed can only be ascertained by the court or jury before whom the action was tried (Code, § 309).

If this was a proper case for an extra allowance, it could only have been granted at the circuit. The provision in regard to extra allowance is not applicable to a judgment on appeal (2 Coms. R. 570).

The costs of the original action were adjusted by the clerk and became part of the judgment from which the appeal was taken. That judgment has been affirmed and it is now too late to add to or diminish the costs thus adjudged.

This objection is applicable to both branches of this motion.

Motion denied.