Van Rensselaer v. Kidd

Decided November 15, 1850

New York Supreme Court · decided 1850-11-15

This was a motion by defendant Kidd for a readjustment of the costs in this cause, and for an extra allowance. Kidd was prosecuted as Treasurer of Albany County, and having succeeded in the suit at the circuit and on appeal at the general term, claimed double costs under the statute, which had been disallowed by the clerk on adjustment.

Cited by 1 later decisions — most recently February 1897

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1850-11-15

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Parker, Justice.

¶1I think the statute giving double costs is repealed by the Code. My reasons are stated in Hallenbeck vs. Miller (4 How. Pr. R. 239).

¶2 *243Nor can I award any extra allowance. That can only be done by the court before which the trial was had or the judgment rendered (Rule 86). So too, the value upon which the per centage must be computed can only be ascertained by the court or jury before whom the action was tried (Code, § 309).

¶3If this was a proper case for an extra allowance, it could only have been granted at the circuit. The provision in regard to extra allowance is not applicable to a judgment on appeal (2 Coms. R. 570).

¶4The costs of the original action were adjusted by the clerk and became part of the judgment from which the appeal was taken. That judgment has been affirmed and it is now too late to add to or diminish the costs thus adjudged.

¶5This objection is applicable to both branches of this motion.

¶6Motion denied.