Cahill v. Mayor of New York

O’Brien, J. (dissenting):

Upon the termination of the action in her favor the plaintiff was entitled, under section 3228 of the Code of Civil Procedure, to tax the full bill of costs, and, unless she had waived it, there was no discretion in the court to deprive her of that right. The question of the effect of a provision in an order granting a party leave to answer upon payment of costs to date upon the right, in case of success, to again tax a full bill of costs; has been frequently before the courts, but has resulted in conflicting decisions which we shall not attempt to reconcile.

We think, however, that the view of the General Term of the Court of Common Pleas in Cohu v. Husson (13 Daly, 338) is supported by reason. In the opinion in that case it was said : “ It is objected that the £ costs to date ’ having been paid under the order imposing those terms as a condition of amendment, cannot be recovered again in the judgment entered by the party who has received them. The City Court held that he could, following the Hew York Superior Court in Havemeyer v. Havemeyer (48 N. Y. Super. Ct. 104), holding that the order imposing payment of costs of the action to the present time’ as a condition of amendment,£ contemplated only a compensation to the plaintiff for the amendment, to be measured by the taxable costs to the time of its entry.’ This view seems to be reasonable. Any other construction would, in the event of ultimate recovery by the party who has received the costs, deprive him of the compensation intended as an offset to the favor granted his adversary.” And in the case of Havemeyer v. Havemeyer (48 N. Y. Super. Ct. 104, 105) it was said : “ The condition was not, as the plaintiffs now claim, that the defendants should pay the plaintiffs’ costs and, in addition, submit to the loss of their own and to the loss of their disbursements though they should finally succeed ih the action. Language very different from that which was used would be required to maintain this proposition. Hor can I perceive that the imposition of the condition was, in legal effect, a final disposition of *279the costs of the whole litigation on both sides up to that time. The order having been made during the pendency of the issues and in the exercise of the discretion of the court, and in respect to a matter of pleading merely, it contemplated not a final and complete disposition of all costs that had accrued up to that túne as such, but a compensation to the plaintiffs for the amendment; to be measured by the taxable costs to which they would have been entitled in case then and there they had succeeded. The same ruling wás made by the special term of this court in Donovan v. Board of Education (1 Civ. Proc. Rep. 311).”

The injustice in the application of any other rule could not be more apparent than in the present action, wherein, after the case had been at issue for three years, an application was made to amend the answer by setting up the Statute of Limitations, which was granted upon payment of the taxable costs; and this payment, having been made as a condition to the granting of the favor, is now held to be an obstacle to the right which the plaintiff has as the successful party under the Code, to tax a full bill of costs. In providing for the payment of “ the taxable costs to date,” what was done by the court was to adopt a method which would be fair for fixing the amount which the defendant should pay for the favor granted in being allowed, after so long a time, to interpose a defense or a new issue in the case. If, upon plaintiff’s succeeding, the defendant is to be credited with the amount thus paid, it really has paid nothing for the favor granted, and the plaintiff has obtained no compensation for the additional labor, expense and delay entailed by the amendment to the answer allowed.

We think the order appealed from should be reversed, with costs, and the motion to retax the costs should be granted, with ten dollars costs.

Van Brunt, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.