Wilkinson v. Tiffany
New York Supreme Court
Appeal from an order granting an allowance. This action was brought by Israel Wilkinson against William Tiffany, upon an award and an account, for the recovery of money only. The plaintiff claimed a judgment in his summons and complaint for $600. The defendant interposed an answer to the complaint; and the action was referred to a referee, who made a report, that there was due from the defendant to the plaintiff the sum of $176x9o3q.
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Appeal from an order granting an allowance. This action was brought by Israel Wilkinson against William Tiffany, upon an award and an account, for the recovery of money only. The plaintiff claimed a judgment in his summons and complaint for $600. The defendant interposed an answer to the complaint; and the action was referred to a referee, who made a report, that there was due from the defendant to the plaintiff the sum of $176x9o3q. The plaintiff, upon an affidavit and notice, moved, at the Hadison special term in June, 1856, for an extra allowance as costs, under section 308 of the Code.…
1Opinion of the Court
By the Court*—Balcom, J.
—The plaintiff’s counsel insists that no appeal will lie from the order granting extra costs to the plaintiff in this action for three reasons.
1. Because the granting of extra costs rests in the discretion of the court.
2. Because the order does not affect a substantial right.
3. Because the order was granted by default, and the defendant’s remedy, if he has any, is by a motion to set aside the order as irregular.
The order must have been granted through the inadvertence of the judge who held the court; for all the extra costs that the court had power to allow the…
2Cases cited2 opinions
- Callagan v. HallettNew York Supreme Court · 1803
- Cook v. DickensonThe Superior Court of New York City · 1852
3Cited by1 opinion
- Pinder v. StoothoffNew York Supreme Court · 1868