Emmons v. Cairnes , 11 Paige Ch. 380 ( 1844 )

The Chancellor.

The objection to the items of costs was not well taken. The general affidavit to the first bill, which included these items, was sufficient evidence, prima facie, that the services had been performed. And the defendant having waived an affidavit' of verification to the last bill, could not object that the services had not been performed; without producing some evidence, to the taxing officer, tending to show that fact. It is not sufficient tó produce evidence here, for the first time, showing that the services charged in the bill, and verified in the usual way, were not in fact performed. But such evidence should be produced before the taxing officer. And if he decides wrong, upon the evidence before him, the court will correct such decision upon the same state of facts which were presented to him. The charge for the affidavit verifying the bill of costs was properly allowed, although no such affidavit was annexed to the last bill. Such an affidavit having been made and annexed to the first bill, the complainant was entitled, to charge for it,, although the defendant waived a verification of the new bill; as only one charge for the service was made.

Upon examining the terms of the order under which these costs was allowed*, I think the taxing officer was right in supposing that the sixty-second rule did not apply. The object in limiting the amdunt of costs, where a party does not succeed as to the whole of his exceptions to the master’s report, was to relieve the court from the necessity df apportioning the costs in, reference to the exceptions Allowed. But in this case, as it appears, the court thought proper to apportion the costs in reference to the number of exceptions finally allowed, so far as related to the costs of the hearing, before the vice chancellor; and to allow the complainant no costs on the appeal, although he had succeeded as to six-sevenths df the exceptions which were in controversy upon such appeal; It must, therefore, have been the intention of the court, by this order, to give to the complainant six-eighths of the taxable costs,, upon the exceptions to the master’s report, to which he would have been entitled if all of such exceptions had beén finally allowed, by the vice chancellor, and there had been no appeal. The construction would .have been otherwise if the order had simply allowed costs upon the exceptions, to be taxed. For, in that caáe, the taxing officer would merely strike out of the bill the charge for drawing and copies of the single exception, to the master’s report, which was finally disallowed ; and would allow the other charges in full, but limiting the whole amount of costs to be paid by the defendant to ten dollars.

The application for re-taxation must be denied, with ten dollars costs.