Lennon v. MacIntosh
City of New York Municipal Court
Motion for retaxation of costs. Defendant having suffered default at trial term, the court granted his application to open the default “ upon condition that within three days after service of a copy of this order he pay to the plaintiff or his attorneys $20 costs, and the witness fees for the day the default was taken,” etc. Upon the trial subsequently had, plaintiff had a verdict.
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Motion for retaxation of costs. Defendant having suffered default at trial term, the court granted his application to open the default “ upon condition that within three days after service of a copy of this order he pay to the plaintiff or his attorneys $20 costs, and the witness fees for the day the default was taken,” etc. Upon the trial subsequently had, plaintiff had a verdict. Upon taxation of costs, the plaintiff claimed the right to tax two trial fees, but the clerk refused to allow more than one. Defendant claimed that the $20 paid by him upon opening the default should be deducted…
1Opinion of the Court
McAdam, Ch. J.
The costs originally imposed as a condition of granting the favor then applied for, were allowed by way of penalty for the default suffered and are not to be deducted from the taxable costs to which the successful party ultimately becomes entitled (Cohn v. Husson, 13 Daly, 334, at p. 338; aff’g 3 How. Pr. N. S. 130). As the successful party is entitled'to afee for each trial, the $30 should not have been disallowed.
Retaxation ordered.
2Cases cited1 opinion
- Cohu v. HussonNew York Court of Common Pleas · 1885
3Cited by5 opinions
- Roberson v. Rochester Folding Box Co.Appellate Division of the Supreme Court of the State of New York · 1902
- Kummer v. Christopher & Tenth St. RailroadNew York Court of Common Pleas · 1895
- Byrne v. Brooklyn City & Newtown R. Co.New York City Court · 1893
- Moniz v. National Constructors, Inc.New York Supreme Court · 1952
- Engberman v. North German Lloyd Steamship Co.Appellate Terms of the Supreme Court of New York · 1903