Opinion
June Term, 1897.
George R. Carrington, for the appellants.
John H. Greener, for the respondent.
Present — PATTERSON, RUMSEY, O'BRIEN, INGRAHAM and PARKER, JJ.
An action, entitled as above, was brought by the plaintiff to recover the sum of $683.53 and interest from the 28th of August, 1896, alleged to be the value of ninety-two pieces of blue stone, the property of the plaintiff, which was converted by the defendants and disposed of for their own use. The answer denied each and every allegation of the complaint except the one alleging a partnership of the defendants, which it admitted. The issues thus made were tried before a court and a jury, resulting in a verdict in favor of the plaintiff in the sum of $18.91, by direction of the court. The recovery being less than $50, the defendants were entitled to costs. (Code, § 3228, subd. 4; id. § 3229.)
The clerk, nevertheless, refused to tax costs in favor of the defendants, and on the review at Special Term an order was made affirming this action. In support of such order, the respondent on this appeal urges: That the defendants' practice was wrong, in that they appealed from the decision of the clerk instead of moving for a new taxation. At least two answers to such contention may be found in the record. First, the plaintiff did not object that the defendants' practice was wrong, but instead acquiesced in the disposition of the question on its merits; and, second, the order recites that the defendants moved for a new taxation of costs, and denies such motion.
Respondent further objects that the papers before the court were insufficient, in that they did not contain an affidavit of what took place before the clerk. This objection, made for the first time on appeal, is too late. The court, without any suggestion of irregularity in the practice, was permitted to pass on the merits, and thus, by common consent, all technical defects in the procedure were waived. If the appeal brought up all the questions relating to the insufficiency and irregularity of the moving papers, we should, doubtless, answer the respondent's position by saying that an affidavit was not needed to show the action of the clerk on the taxation of the costs, in which he not only refused to tax costs in favor of the defendants, but gave his reasons for it.
The order should be reversed, with ten dollars costs and printing disbursements, and a motion for a retaxation be granted, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.