Sherwood v. Travelers Insurance

Beach, J.

I have been unable to find any adjudication bearing upon the question. In Ex parte Stephens (6 Cowen 68), and The People ex rel. Lincoln v. The Saratoga Common Pleas (1 Wend. 282), the court go no further than to decide that the method of appeal must be strictly followed, and payment of costs to the party instead of the justice Avas not a compliance Avith the statute. The appellant, if costs are awarded him on the appeal, may tax, among other items, the costs and fee paid to the justice upon taking the appeal (Code Civ. Pro. § 3060). The authority to include these costs among the disbursements on appeal seems to contemplate a prior disposition of them by the justice or his clerk. The only one possible is a payment to the successful party in the district court, as they certainly do not belong to either of those officials, and, if to rest on deposit, no necessity existed for' such a provision. I do not think the giving of an undertaking affects the question, for its purpose does not reach beyond a stay of execution (Code Civ. Pro. § 3050). Neither can these costs fall within section 3058. They are not property lost by means of the erroneous judgment, because not taken from the party-under the judgment, but paid as one of the steps needful to perfect his appeal.

The order should be reversed, with costs and disbursements.

Van Brunt and Van Hoesen, JJ., concurred.

Order reversed, with costs.