Opinion
March, 1904.
Bunnell Bunnell, for appellant.
Hays Hershfield, for respondents.
A judgment was rendered in the City Court in favor of the plaintiff and against the defendants on the 2d day of July, 1903; the plaintiff appealed to this court and this court affirmed the judgment, with costs. The defendant-respondents thereupon, without notice to the plaintiff's attorneys, entered a judgment in said City Court for the sum of $102.10, their costs and disbursements upon the appeal; thereafter the defendant-respondents served upon the plaintiff's attorneys their bill of costs with notice of retaxation. On the day and hour set forth in said notice, plaintiff's attorneys appeared before the clerk of said City Court for all the purposes of such retaxation, but the defendants' attorneys failed to appear and such retaxation was thereupon dismissed. A motion was thereupon made to compel the defendants to retax their costs before the clerk in accordance with the provisions of section 3264 of the Code of Civil Procedure. The motion for that relief was denied. An appeal has been taken from such portion of said order.
Costs must be taxed by the clerk of the court in the first instance. Code Civ. Pro., § 3262. Costs may be taxed by the clerk without notice, but, in that event, the party at whose instance the costs were so taxed must immediately give notice of retaxation before the clerk, and if he fails in this the adverse party is entitled to an order compelling him to do so, with costs. Code Civ. Pro., § 3262. The defendants herein followed the provisions of that section.
At the time fixed for the hearing upon the motion for the retaxation the plaintiff appeared, but the defendants did not. The proceedings were thereupon dismissed by the clerk. Whether this dismissal was procured by application of the plaintiff or by the clerk upon his own motion does not appear. Thereafter the plaintiff, treating the situation as though no motion for a retaxation had been made, applied for the order herein appealed from. We think the plaintiff under the circumstances disclosed has mistaken his remedy.
"When, under the provisions of section 3262, supra, costs are taxed without notice to the opposite party the amount of them as adjusted, is to be entered in the judgment, and the judgment is to remain unaltered and is final in form and complete. If the costs are retaxed and reduced upon the retaxation, the judgment is not to be changed, but the amount of the reduction is to be credited upon the execution." Hewitt v. City Mills, 136 N.Y. 211 -213.
Section 3266 of the Code places the duty upon the clerk of ascertaining and satisfying himself, as the taxing officer of the court, that all the terms of the bill of costs are "correct and legal," and proper notice of a retaxation having been given, it is not essential to such determination that the defendants should be present at the time named for such retaxation.
The proceedings should not have been dismissed, but the defendants are in no way responsible for that result. Having been dismissed, the plaintiff was not remediless. Section 3265 of the Code provides that a taxation or a retaxation may be reviewed upon a motion for a new taxation. If the plaintiff was aggrieved by the action of the clerk he should have moved for relief under that section.
Order affirmed, with costs and disbursements.
SCOTT and BLANCHARD, JJ., concur.
Order affirmed, with costs and disbursements.