Bostwick v. Tioga Railroad

By the court—Welles, Justice.

Section 304 provides for the allowance of costs of course to the plaintiff, upon a recovery, in the following cases. The section then proceeds with an enumeration of the cases, &e., the fourth of which is: “ In an action for the recovery of money, where the plaintiff shall recover $50 or more.”

Section 305 provides that costs shall be allowed of course to the defendant, in the actions mentioned in section 304, unless the plaintiff be entitled to costs therein.

Section 306 provides respecting costs in other actions.

Section 307 provides what items shall be recovered when costs are allowed.

Section 308, as amended in 1857, provides that, in addition to these allowances, there shall be allowed to the plaintiff, *458upon the recovery of judgment by him in any action for the partition of real property, or for the foreclosure of a mortgage, or in which a warrant of attachment has been issued, or for an adjudication upon a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per cent, on the recovery as in the next section prescribed, for any amount not exceeding $200; an additional sum of five per cent, for any additional amount-not exceeding $400, and an additional sum of two per cent, for any additional amount not exceeding $1,000.

Section 309, as amended in 1857, declares that these rates shall be estimated upon the value of the property claimed or attached, or affected by the adjudication upon the will or other instrument, or sought to be partitioned, or the amount found due upon the mortgage in an action for a foreclosure, &c., &c.

This section was again amended in 1858, by adding the following:

“ In difficult and extraordinary cases, where a trial has been had, and in any of the actions or proceedings specified in section 308, the court may also, in its discretion, make a further allowance to any party not exceeding five per cent, upon the amount of the recovery or claim”

Section 322 provides that, upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant, as costs, than at the rate prescribed in that section.

The foregoing are all the provisions of the Code to which it is necessary to refer for the purposes of the present question. It will be perceived that section 308 is the only authority for an extra allowance in any case whatever, and specifies the cases in which such an allowance may be made. It gives the allowance only upon the recovery of judgment.

The word recovery alone is afterwards mentioned in the same section, and also in section 309, but they are clearly referable to that part of section 308 which describes and specifies the cases for an additional allowance, where they are characterized as cases upon the recovery of judgment.

*459This is the kind of recovery afterwards mentioned, if, indeed, there can be any other kind, in a legal sense.

In the present case there was no recovery of judgment, but after the action proceeded to issue and was noticed for trial, and was on the calendar at the Steuben circuit in June, 1858, the parties settled, by the agreement of the defendant, to pay, in satisfaction of the plaintiff’s demand, a sum exceeding $5,000, and to pay the plaintiff’s costs and disbursements in the action. It is not a case, therefore, in which an additional allowance can be made under section 308, but is provided for by section 322, which limits the costs in such cases to the provisions of section 304, the items of which are enumerated and defined in section 307.

The order, so far as the same is appealed from, should be reversed, and the item of extra or additional allowance of $60 should be stricken out of the bill, with $10 costs of the appeal.

Ordered accordingly.