Opinion
February 20, 1961
Harris, Beach, Keating, Wilcox, Dale Linowitz ( Thomas M. Hampson of counsel), for defendant.
Chamberlain, D'Amanda, Bauman Brundage ( Arthur V.D. Chamberlain of counsel), for plaintiffs.
This is a motion to review the action of the County Clerk in the taxation of costs. In this action defendant appealed to the Appellate Division of the Supreme Court, Fourth Department, from an order of Monroe County Court entered in the office of the County Clerk on or about August 17, 1959. The Appellate Division affirmed the order appealed from "without costs of this appeal to any party." ( 10 A.D.2d 597.) In the judgment, after a trial of the issues, plaintiffs included in their bill of costs an item of disbursements of $27.35 entitled "For Printing Points Appeal to A.D." Defendant objects to this item.
In my opinion, "costs" include disbursements, and plaintiffs are not entitled to tax their disbursements in the Appellate Division in this action in their bill of costs. Section 1518 of the Civil Practice Act, reads as follows: "A party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements as follows". (See, also, Civ. Prac. Act, §§ 1505, 1508, 1499.) Since the Appellate Division affirmed the order of this court "without costs of this appeal", it seems to follow that taxable disbursements, being included in costs, cannot be taxed by either party.
On the general principle of taxable disbursements being included in a bill of costs see Matter of Shlakman v. Board of Higher Educ. ( 10 Misc.2d 397, 398) where the court said: "The right to disbursements is incident to the right to costs". (See, also, Matter of Schechter v. Smith, 185 Misc. 918, 919; Matter of Hughes, 231 App. Div. 770.)
I hold that the otherwise taxable disbursements of either party in the Appellate Division may not be properly included in the judgment herein. Defendant's motion is granted, without costs, and the item of $27.35, disbursements in the Appellate Division herein, is disallowed and stricken from the bill of costs.