This is a motion for readjustment of costs. The action was tried before a referee, and resulted in a judgment in favor of the defendants "for their costs, which amounted to $193.25. An appeal was taken from this judgment to the general term, which affirmed the judgment, with costs. The costs were taxed at $54.80, and judgment in favor of the defendants was en
On the adjustment of the costs by the clerk of Otsego, he allowed the defendants a fee of $10 for each of the eight terms at which the cause was on the calender of the court of appeals, and also ten per cent, on the said sum of $338.72, as the damages allowed by the court of appeals.
From these two allowances the plaintiff appeals, insisting that no term fees are taxable in the court of appeals, and that the ten per cent, is confined to the $54.80, the costs of the appeal to the general term, which, it is insisted, is the judgment appealed from to the court of appeals.
The 7th subdivision of section 307 of the Code, under which the claim for term fees is made, is as follows : “To either party, for every circuit or term,,not exceeding five circuits, and five special and five general terms at which the cause is necessarily on the calendar, &c., ten dollars.”
In the court of appeals there are no circuits, and no terms known as special, none known as general terms. The Sessions of that court are called simply “ terms.” As such they are always spoken of in the constitution, in the '
If Ave consider the above provision of the statute without reference to the history of its several amendments, I think the construction given to it by the plaintiffs’ counsel would be adopted as the correct one. But in order to ascertain Avhat the legislature intended, it is necessary to look back and see hoAV the matter stood Avhen the subdivision was put into its present shape.
Up to 1857 the provision in question was as follows : “ To either party, for every circuit or term at which the cause is necessarily on the calendar, &c., ten dollars.” That evidently included terms in the court of appeals.
In 1857 it was amended so as to read as follows : “ To either party for every circuit or term, not exceeding three, at which the cause is necessarily on the calendar, &c., ten dollars.” Here the terms in the court of appeals are still included.
In 1858 it Avas, by amendment, put into the form in which it noAv stands, as quoted above. Did the legislature, by this amendment, intend to abolish the term fees in the court of appeals, or merely to fix a new limitation to the number, and apply it to the courts in Avhich are held circuits, and special and general terms ? It is to be observed, that the language granting term fees, viz., “ to either party for every circuit or term,” is not changed. By this portion of the section theretofore term fees in the court of appeals Avere given. The only change is in substituting for the words “ not exceeding three,” the following : il Not exceeding five circuits, and five special and five general terms.”
I do not think we are to infer from this amendment
In regard to the amount of damages allowed by the clerk, under the award of damages by the court of appeals, I think the clerk was right in adopting the whole amount of the recovery below as the amount of the judgment on which to compute the ten per cent., but wrong in including the interest on that amount as part of the sum on which to base the computation.
The provision of the statute under which the damages were awarded is as follows : “ And when a judgment is affirmed the court may, in its discretion, also award damages for the.delay, not exceeding ten per cent, upon the amount of the judgment.” Although the judgment given at the general term did not include a new judgment for the amount recovered in the action, for which judgment had been already entered, but was a judgment affirming said judgment for the amount recovered, with costs of the appeal, I think, in contemplation of the above provision
There must, therefore, be a readjustment for the purpose of making this correction. In other respects the adjustment by the clerk was correct. No costs of this motion are given to either party.