Kiernan v. Agricultural Insurance
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiffs, William Kiernan and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 14th day of October, 1895, requiring ■ the clerk of Cattaraugus county “ to tax and allow the defendant’s costs in this action subsequent to the offer of judgment made by the defendant on the 11th day of May, 1892, and to retax and readjust the plaintiffs’ costs in this action, and…
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Appeal by the plaintiffs, William Kiernan and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 14th day of October, 1895, requiring ■ the clerk of Cattaraugus county “ to tax and allow the defendant’s costs in this action subsequent to the offer of judgment made by the defendant on the 11th day of May, 1892, and to retax and readjust the plaintiffs’ costs in this action, and to allow the plaintiffs only such items of costs and disbursements as accrued prior to said offer of judgment on the…
1Opinion of the Court
Hardin, 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 *28actions where a discretion as to costs has been exercised as a part of the action of the trial court or of a referee, the discretion cannot be reviewed at Special Term. The party seeking to have the discretion exercised at the Trial Term altered or changed should appeal. (Olcott v. Maclean, 11 Hun, 394 ; Woodford v. Bucklin, 14 id. 444; McLean v. Stewart, Id. 472;. House v.…
2Cases cited4 opinions
- Heath v. New York Building Loan Banking Co.New York Court of Appeals · 1895
- Bathgate v. . HaskinNew York Court of Appeals · 1875
- Singleton v. Home InsuranceNew York Court of Appeals · 1890
- Pfister v. StummThe Superior Court of New York City · 1894
3Cited by4 opinions
- Purdy v. JohnsonCalifornia Court of Appeal · 1929
- Gennert v. Butterick Publishing Co.Appellate Division of the Supreme Court of the State of New York · 1909
- Barnes v. Midland Railroad Terminal Co.Appellate Division of the Supreme Court of the State of New York · 1911
- Weinreb v. Coleman Stable Co.Appellate Terms of the Supreme Court of New York · 1910