ORDERED,' that the said plaintiff be allowed and recover the costs of this action to be taxed [add allowance if granted], to be collected out of the individual property of said Y. Z. § Enter: [signature of judge by initials of name and title.] FORM No. 1688. Statement of costs and disbursements for entering judgmcnt.2 [Title of court and action.] 1 An order is not needed, if he did not necessarily sue in such capacity but might have sued in his individual name. Buckland v. Gallup, 105 N. Y. 453; Bedell v. Barnes, 29 Hun, 589, and cases cited. In other cases it is necessary. Morgan v. Skidmore, 3 Abb. N. C. 92; N. Y. Code Civ. Pro., § 3246. Such an order cannot be made as to a part, on the ground that the recovery was as to a part for the personal benefit of the representative. Hone t. De Peyster, 106 N. Y. 645, rev'g 44 Hun, 487. As to one acting after expiration of trust, see Am. L. Ins. Co. v. Van Epps, 14 Abb. Pr. 253. As to discretion in equitable actions, see Dill v. Wisner, 88 N. Y. 153. 2 Costs and disbursements paid as a condition for the granting of a favor cannot be again taxed. See Grant r. Pratt & Lambert, 110 App. Div. 149; Woolsey r. Ellenville, 84 Hun, 234, 32 N. Y. Supp. 546. By an addition to section 3228, in effect Sept. 1, 1904, the plaintiffs in actions thereafter brought in New York and Kings counties, must, if the summons is served within those counties, obtain a specified recovery in order to entitle to costs. In applying the section it has been held that the amount paid in settlement of one cause of action cannot be added to the recovery upon the causes of action included in the same complaint. Hill t. Kann, 50 Misc. 360. 3 Not taxable twice although a first fore trial [§ 3251, sub. 3]. . Additional defendants served [ 3251, sub. 1] ... Trial fee, issue of fact § 3252, sub. 3]............. trial resulted in a disagreement. Hakonson v. Met. St. Ry. Co., 40 Misc. 182, 81 N. Y. Supp. 662; Hudson r. Erie R. R. Co., 57 App. Div. 98, 68 N. Y. Supp. 28; Seifter t. Brooklyn Heights R. R. Co., 53 App. Div. 443, 65 N. Y. Supp. 1123. Not taxable on defendant's default in pleading, although plaintiff had to make proof to court to obtain judg. ment. Cohen v. Cohen, 72 Hun, 393, 25 N. Y. Supp. 387. 4 Voluntary appearance held equivalent to service. Schwinger v. Hickox, 46 How. Pr. 114, 1 Buff. Super. Ct. (Sheldon) 377. 5 Allowed only for actual trial (Studwell v. Baxter, 33 Hun, 331); but for each trial, if there is a new trial. Hudson v. Erie R. R. Co., 57 App. Div. 98, 68 N. Y. Supp. 28. Infant's general answer raises an issue which results in a trial. Wandell v. Hirschfield, 40 Mise. 527, 82 N. Y. Supp. 879; Roosevelt r. Schermerhorn, 32 Misc. 287, 66 N. Y. Supp. 366. Disagreement of jury, or trial begun and juror withdrawn by the adverse party (Browning v. Goldman, 35 Misc. 272, 71 N. Y. Supp. 822; Mott v. Consumers' Ice Co., 8 Daly, 245, 19 Abb. Pr. 446), or dismissal of complaint for insufficiency of evidence (Gates v. Canfield. 28 Hun. 12), or dismissal on plaintiff's failure to ap pear (Van Gelder v. Hallenbeck, 2 N. Y. Supp. 252, 15 Civ. Pro. Rep. [id. .... and 3236... Procuring order for substituted service of summons [3251, sub. 1] Appointment of guardian ad litem for infant defendant [§ 321, sub. 1] Procuring injunction [or, order of arrest, § 3251, sub. 1].. 333), or inquest (Weiss v. Morrell, 7 Misc. 541, 28 N. Y. Supp. 61), counts as a trial. Mere commencement of trial, followed by sending the cause elsewhere for trial (Third Nat. Bank v. McKinstry, 2 Hun, 443), or by discontinuance (Studwell Baxter, v. above; Sutphen v. Lash, 10 Hun, 120; Lockwood t. Salmon Riv. Paper Co., 20 N. Y. Supp. 967), does not. When a case has been improperly placed by plaintiff upon the short cause calendar, and it has been sent back to the general calendar after a partial trial, if defendant ultimately recovers he can tax the costs and disbursements of the attempted trial as a short cause; but if plaintiff succeeds, no costs of the mistrial can be taxed by him. Browning v. Brokaw, 114 App. Div. 104. The day on which the jury was impanelled, and an adjournment taken, counts as one day. Goodkind v. Met. St. Ry. Co., 44 Misc. 30, 89 N. Y. Sunn. 703. 7 See Form 1685, and notes. 8 Allowed for deposition taken in this State by consent. Smith v. Servis. 59 Iun. 552, 13 N. Y. Supp. 941. Not duplicated because of reading the deposition again on a second trial, nor because taken by stipulation to be used in two causes. Am. Diamond, etc., Co. v. Sheldon, 28 Fed. Rep. 217. 9 Allowed for deposition taken without the State, by consent, under the statute. Allowed where a plaintiff succeeds in the action although the cause of action upon which the commission issued was dismissed. Burns v. Del., L. & W. R. R. Co., 135 N. Y. 268. Not duplicated because of reading the deposition again on a second trial, or in another cause. 10 Only one charge is allowed for each commission, though it be for several witnesses and with several sets of interrogatories. O'Brien v. Commercial Fire Ins. Co., 38 N. Y. Super. Ct. 4; Johnson v. Chappell, 7 Daly, 43, 44; contra, Marston Hebert, 60 How. Pr. 490. v. Item held properly taxed although interrogatories were not served. Evans v. Silbermann, 7 App. Div. 139, 40 N. Y. Supp. 298. 11 This is construed to mean the technical "case" stating the proceedings on the trial of an issue of fact; it does not include other appeal books. 12 Excluding term at which cause is disposed of. Evans v. Silbermann, argument [id.] . . . . . . . on verdict subject to - for argument [id.]... 7 App. Div. 139, 40 N. Y. Supp. 298. The cause must have been at issue as to all defendants. Bowen v. Sweeney, 66 Hun, 42, 20 N. Y. Supp. 733. Term fees are taxable though cause goes over term by mutual consent. Deyo v. Morss, 21 Misc. 497, 48 N. Y. Supp. 171, 5 Anno. Cas. 44. It is not necessary that the party should have noticed the cause on his own part for trial. Andrews v. Schnitzler, 48 N. Y. Super. Ct. 173. Term fees not allowed when case went over term because of an amendment of pleading within time allowed therefor. Fuller Buggy Co. v. Waldron, 49 Misc. 278, 97 N. Y. Supp. 730. 13 Full costs as of appeal are al Appeal to Appellate Term, before argument [§ 3251, sub. 4]..... for argu ment [id.] Preparing case on appeal to Court of Appeals [§ 3251, sub. 3] . . . . . Damages in Court of Appeals for delay [§ 3251, sub. 5].. ... Proceedings after granting of and before new trial [§ 3251, sub. 3] . . . . Assessment of damages after judgment absolute in Court of Appeals [$ 3251, sub. 3]...... lowed. Fleischman v. Yagel, 16 Misc. 511, 38 N. Y. Supp. 523; Reid v. Gaedeke, 38 App. Div. 107, 57 N. Y. Supp. 414; Perkins v. Brainerd Quarry Co., 11 Misc. 337, 32 N. Y. Supp. 236; Pilgrim v. Donnelly, 15 Abb. N. C. 240. 14 Bloch v. Linsley, 40 Misc. 184, 81 N. Y. Supp. 661. 15 As to when full costs are allowed upon each of separate appeals from judgment, and from order as to new trial respectively compare id., and Keeler v. Barrett's, etc., Dyeing Estab., 18 Abb. N. C. 459, with Syms . Mayor, etc., of New York, 105 N. Y. 153. fees19 Referee's fees [§ 3256 and 16 The increase formerly was computed on disbursements also. Klinck v. Kelly, 15 Abb. Pr. (N. S.) 135. Otherwise under N. Y. Code Civ. Pro., § 3259. 17 Disbursements repaid to a party as a condition of granting a favor to the adversary, cannot be thereafter taxed. Grant . Pratt & Lambert, 110 App. Div. 149. Premiums paid to surety companies not taxable. Bick v. Reese, 52 Hun, 125, 5 N. Y. Supp. 121, 17 Civ. Pro. Rep. 110. 18 Does not apply to a reference to take a deposition under section 873. Reichel v. N. Y. Central, 9 N. Y. Supp. 415, 18 Civ. Pro. Rep. 256. See, as to STIPULATIONS, Vol. I, p. 436. See, as to referee's affidavit, Form 1691. 19 Not allowed where the only witness examined was the taxing party in his own behalf. Delcomyn v. Chamberlain, 39 N. Y. Super. Ct. 359. Allowed, notwithstanding the party was examined, where other witnesses were also examined. Simpson v. Brown, 2 N. Y. Supp. 571. As to rate, see Burns v. Del., L. & W. R. R. Co., 135 N. Y. 269. Paid for searches [id., and § 3304]. .. --affidavits and acknowledgments20 [§ 3298] .. Recording mortgage20 [in foreclosure rule] Serving summons and complaint21 [§ 3307, sub. 1] Certified copies of orders [§§ 3301 and 3304] .. will of M. N. [or other paper] for trial [$ 3256]. Satisfaction piece Transcript and filing [§§ 3301, 3304]...... Certified copy judgment.. Postage. Jury fees. Stenographer's fees under stipulation22. 20 Fees of acknowledgment, oath, and record, and expense of transmis sion, when required in the course of a duty imposed by law on an officer or other person, he may tax. N. Y. Code Civ. Pro., § 3291. 21 Extra compensation paid for extra trouble in excess of legal fee, not taxable. Brown v. Mapleson, 2 City Ct. 404. Fees for personal service of a pleading other than complaint, or an order, when no necessity for such service shown, not allowed. Fuller Buggy Co. v. Waldron, 49 Misc. 278, 97 N. Y. Supp. 730. Cost of publishing summons is properly taxable. Code Civ. Pro., 3256; Chevers v. Damon, 13 N. Y. Supp. 452, 37 St. Rep. 904. 22 Stenographers' fees upon references cannot be taxed without a stipulation providing that they shall be taxable as a disbursement. Clegg v. Aikens, 17 Abb. N. C. 88; Griggs v. Guinn, 29 Abb. N. C. 144, 21 N. Y. Supp. 451; note in 20 Abb. N. C. 183; Newhall . Appleton, 4 Monthly L. Bul. 5; s. P., Byrne v. Groot, 5 id. 56; Mark v. City of Buffalo, 87 N. Y. 184; Colton v. Simmons, 14 Hun, 75; Pfaudler Co. v. Sargent, 43 id. 154. Affidavit to disbursements; written under the bill of costs. [Venue.] * C. D., being duly sworn, says, that he is [managing clerk of A. T.] the attorney for [plaintiff] herein; that the foregoing disbursements are reasonable in amount26 and have been actually and necessarily made or will be necessarily incurred herein on the part of said [plaintiff]; and that the services for which fees are charged as incurred were necessarily performed.27 That the cause was necessarily on the calendar the terms above named, and was not tried, or was postponed thereat by order of the court; that no charges for a copy of a document or paper is made therein, except for a copy of a document or paper actually and necessarily 23 Minutes for use in preparing "case" on appeal, or amendments thereto, may be charged for. Starkweather . Sundstrom, 113 App. Div. 401; Park v. N. Y. Central R. R. Co., 57 App. Div. 569, 68 N. Y. Supp. 1145; Gallagher v. Baird, 60 App. Div. 29, 69 N. Y. Supp. 676. It is not necessary that a respondent request the loan of the minutes of the appellant, in order to properly tax the cost of the copy of the minutes procured by him to prepare amendments; the appellant should have tendered the loan of his copy. Starkweather r. Sundstrom, 113 App. Div. 401. Cost of minutes for use on second trial not taxable. Herrman v. Herr man, 88 App. Div. 76, 84 N. Y. Supp. 736; Hudson r. Erie R. R. Co., 57 App. Div. 98, 68 N. Y. Supp. 28. 24 No mileage allowed without proof of right thereto. Hakonson r. Met. St. Ry. Co., 40 Misc. 182, 81 N. Y. Supp. 662. 25 Allowed only when printing is required by law or rule of court. Veeder r. Judson, 91 N. Y. 374. As to rate, see Salter r. Utica, etc., R. R. Co., 86 N. Y. 401; Dickinson v. Rogers, 7 N. W. Rep. 434; Consalus r. Brotherson, 54 How. Pr. 62; Potter r. Carpenter, 56 id. 89. 26 This is an essential statement. Raff r. Koster, etc., Co., 27 Misc. 47, 57 N. Y. Supp. 252. 27 N. Y. Code Civ. Pro., § 3266. |