Opinion
November 22, 1907.
D.A. Marsh [ George D. Yeomans with him on the brief], for the appellant.
Frank Herwig, for the respondent.
This action was commenced on March 11, 1905, in the Kings County Court subsequent to the enactment of subdivision 5 of section 3228 of the Code of Civil Procedure. The trial resulted in a verdict of $50 for the plaintiff, and judgment was entered by the plaintiff in his favor and against the defendant for $50, the amount of the verdict, together with $128.58 costs. On April 13, 1907, the costs were taxed and upon that taxation the defendant appeared, and although objecting to one or two insignificant items of disbursements which were finally disallowed by the clerk, did not object to the taxation of costs generally. A motion was thereafter made in the County Court for an order that the taxation of costs be vacated and that the judgment be amended by striking out all provisions in respect to costs. The motion was denied and the defendant appeals.
Subdivision 5 of section 3228 of the Code provides that "in all actions hereafter brought in * * * the County Court of Kings county, which could have been brought, except for the amount claimed therein, in the Municipal Court of the city of New York, and in which the defendant shall have been personally served with process within the city of New York, the plaintiff shall recover no costs or disbursements unless he shall recover two hundred and fifty dollars or more." This action was to recover damages for loss of the plaintiff's wife's services because of personal injuries she received by reason of the negligence of the defendant. The Municipal Court had jurisdiction of this case. (Laws of 1902, chap. 580, § 1, subd. 14; McVeigh v. Gentry, 72 App. Div. 598.) Inferentially it appears that the summons was served upon the defendant within the city of New York, and the respondent submits a brief which presents the questions raised by this appeal upon the theory that such service was made. The plaintiff seeks to sustain the order upon the sole ground that the defendant, having appeared before the clerk upon the taxation and having made no objection to the taxation of costs generally, cannot thereafter be heard to complain.
The general rule is that a motion for retaxation is in the nature of an appeal from the action of the clerk, and the court, upon a motion for retaxation, will not consider any items save those to which objection was made before the clerk ( Lyman v. Young Men's Cosmopolitan Club, 38 App. Div. 220, 222; Comly v. Mayor, 1 Civ. Proc. Rep. 306, 317; Varnum v. Wheeler, 9 id. 421); but in these actions, as in others which might be cited, the objection was made to individual items in a bill of costs where the right to tax costs generally was undenied. In this case the plaintiff was deprived of the right to tax any costs by reason of the explicit provisions of subdivision 5 of section 3228 of the Code. The question was not as to the amount of any particular items or the propriety of the items themselves upon which the clerk ordinarily has the power to pass in the first instance, but to the very right of the clerk to tax costs at all. The clerk had no such right, and it was hardly necessary for the defendant, in order to save the point, to object to the clerk's doing what he had no authority to do. We do not think that the defendant is concluded by the failure to object to the total invalidity of the bill of costs before the clerk, and that the merits of the plaintiff's right to costs should have been determined upon the motion for retaxation, irrespective of its failure to object before the clerk. (See Hill v. Kann, 50 Misc. Rep. 360, 362; De Graff v. Hoyt, 4 T. C. 348, 351.)
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
WOODWARD, JENKS, RICH and MILLER, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.