Kiernan v. Agricultural Insurance
Appellate Division of the Supreme Court of the State of New York
Appeal from special term, Erie county. Action by William Kiernan, as executor, and another, against the' Agricultural Insurance Company and another, on a policy of insurance. From an order made at special term requiring the clerk of Cattaraugus county to retax and readjust the costs in said action, plaintiffs appeal. Affirmed.
1Opinion of the CourtHardin, P. J.
It is apparent from the pleadings in the action, as well as from the concessions made by the respective counsel upon the argument, that this was an equitable action. The general rule is that in equitable actions, where a discretion has been exercised as a part of the action of the trial court or of a referee as to costs, the discretion cannot be reviewed at special term. The party seeking to have altered or changed the discretion exercised at the trial term should appeal. Olcott v. Maclean, 11 Hun, 394; Woodford v. Bucklin, 14 Hun, 444; McLean v. Stewart, Id. 472; House v. Eisenlord, 30 Hun,…
2Cases cited10 opinions
- Heath v. New York Building Loan Banking Co.New York Court of Appeals · 1895
- Hunt v. . ChapmanNew York Court of Appeals · 1873
- Bathgate v. . HaskinNew York Court of Appeals · 1875
- Lumbard v. Syracuse, Binghamton & New York RailroadNew York Court of Appeals · 1875
- West v. City of UticaNew York Supreme Court · 1893
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3Cited by2 opinions
- Purdy v. JohnsonCalifornia Court of Appeal · 1929
- Weinreb v. Coleman Stable Co.Appellate Terms of the Supreme Court of New York · 1910