Guckenheimer v. Angevine , 23 N.Y. Sup. Ct. 453 ( 1879 )

SMITH. J. :

It is well-settled that laches in motions for retaxation is a defence. (McLean v. Forward, 1 Cow., 49; Morris v. Mullett, 1 Johns. Ch. R., 44.) It appears that the costs had been put into judgment, and that the defendant appealed from the judgment and gave an undertaking for their payment. We think the appeal was a waiver of the right to move for a retaxation; and on the merits vve are of the opinion that the plaintiffs were entitled to the argument fee given by statute for each argument. It does not appear that the necessity for a reargiunent was caused by any act or omission on their part, and two arguments having been in fact made, we think the items were properly taxed.

Order reversed, with ten dollars costs and disbursements.

Talcott, P. J., and IIardiN, J., concurred.