Evans v. Silbermann , 40 N.Y.S. 298 ( 1896 )

Per Curiam:

By order made January 30,1896, the plaintiff was permitted to discontinue the above-entitled actions upon payment of the taxable costs. The costs weré taxed on February 4,1896, and, against the plaintiff’s-contention, the cleric allowed items of ten dollars, in ten of the hills, for drawing-interrogatories, and items of ten dollars for term fees in all of the bills. On the taxation plaintiff submitted an affidavit of Joseph Larocque, Jr;, made February 3,1896', showing-that the only -notices of-trial-were for the-. January term, and that the interrogatories were drawn, but had never been served.. The clerk examined i-t, said it would- not be necessary for him to base his decision thereon, and returned it after the taxation. The same day the plaintiff moved for a retaxation upon, among other papers, the affidavit of February third, and another affidavit of Larocque, made February fourth, showing that the previous affidavit had been presented to the clerk on the. taxation.. An order was made February seventh denying the motion, which recited the reading and filing' of Larocque’s two affidavits, and affidavits of Edward W. S. Johnston and William H. Stockwell. Plaintiff then moved to resettle this order by- striking out the recital of the reading and filing of the affidavits- of Johnston and Stoclcwelh By order made February twenty-seventh not only this recital, but also that as to the consideration' of the two affidavits of Larocque, was stricken out.-

From the order denying, the motion for retaxation and the- order of resettlement, the. plaintiff. appealed. In making up thecase on appeal he included -the affidavits, the recitals, as to which had- been stricken out. Motion was made' to strike -them out and amend-the certification, which was granted; and- the plaintiff appeals :

1. Only the .paper's used before the taxing officer can properly be -considered upon a motion to correct liis decision. (Sherry v. Cary, 13 Civ. Proc. Rep. 256; Remington Paper Co. v. O’Brien, 18 Wkly. Dig. 209; Logan v. Thomas, 11 How. Pr. 160.) Larocque’s affidavit of February third would seem to have been before the clerk in such a manner as to render proper its consideration at Special Term. It was not filed, but it was presented - and considered — the clerk deciding that, in spite of the -undisputed facts therein set forth, he should have to allow the items in question. The true gist of the rule seems to be that the clerk-shall not be held in error on account of the existence of facts which were not made to appear until after the- taxation. But when- a-proper- sworn stater ment is presented to him there seems- to be no reason necessitating that it be filed. Hence the motion for resettlement should have: been -granted in the form made.

2. It was proper, however, to strike out the affidavits of Johnston, and Stockwell, which were not made 'until after the taxation. This-was the object of the motion to resettle, and the Special Term, should have stopped there.

. 3. Of course, tlie plaintiff was not remediless because the Special Term improperly struck out and refused to consider papers properly before it. He had a right to print them that the appellate court might decide whether or not the judge below was right in refusing; to consider them. There seems to have heen no necessity, however,, for printing the affidavits of Johnston and Stockwell. Striking them out did not prejudice the plaintiff, and none of the defendants-complained.

The result is, that, not only was it improper for the judge at; Special Term, in any event, to refuse to allow the case on appeal to-contain the affidavits of Larocque, but also that such affidavits were,, in fact, properly before the judge and were to be considered. The-order appealed from should be reversed, so far as to permit their insertion, without costs.

There seems to be no reason why this court should not go further- and decide the merits of the order denying the motion for a retaxation. The record contains in full all the papers affecting the appeal first taken, which was from this order and that resettling it as above: described. After d-ciding that Larocque’s affidavits were to be: considered, why should not the record, thus settled and established,, be examined ? ...

It seems that the items for interrogatories were properly allowed-Section 3251 of the Code allowed the sum specified for “ drawing-interrogatories.” This is in contrast with other portions of the-section, such as the allowance for “ making and serving a case,”' etc.; and it-seems plain that simply drawing the interrogatories is-sufficient. On the other hand, the term fees ought not to have been allowed. The order of discontinuance was made January 30, 1896. It was the costs then taxable that the court decreed should be paid, and no fee for that term was allowable as it was the first" at. which the case had been upon the calendar.

The order amending the certification -of the county clerk should. be modified so as to permit the insertion of Larocque’s affidavits, without costs; the order resettling the order denying a retaxation should be reversed,'and the motion granted as made, with costs; and the order denying the retaxation should be modified as above indicated, without costs.

Present—Van Brunt, P. J., Barrett, Patterson, O’Brien and Ingraham, JJ.

The order amending the certification of the county clerk. modified so as to permit the insertion of Larocque’s affidavits, without -costs; the order resettling the oiider denying a retaxation reversed, and the motion granted as made, with.costs; and the order denying the retaxation .modified, as above indicated,'without costs.,