DEGENER v. UNDERWOOD

DEGENER v. UNDERWOOD. N. Y. Superior Court, Special Term; May, 1894. 1. Costs; term fees in court of appealsl\ But one term fee can be taxed on an appeal to the court of appeals for each calendar year that the cause is on the calendar of that court, excluding that during which it is argued or otherwise disposed of. 2. The same; damages for delay.] Where the court of appeals, on affirming a judgment, awards a percentage of damages to the respondent, it should be computed upon the amounts of both judgments below, but not upon the accrued interest upon the judgments. Motion for re-taxation of costs. [MAJORITY — McAdam, J.] McAdam, J. This court in Becker v. Elevated Railway Co. (March, 1892), following 42 How. Pr. 466; 14 Civ. Pro. R. 126, held that but one term fee can be charged on an appeal to the Court of Appeals for each calendar year, and that the term at which the cause is argued or otherwise disposed of must be excluded. The cause went on the calendar in 1893, and was argued in 1894, so that but one term, fee, instead of three, was taxable. Twenty dollars must, therefore, come off the bill. The Court of Appeals affirmed the judgment of the General Term, with costs, and five per cent, damages. This percentage should be computed upon the amount of both the judgments below, but not upon the interest accrued upon the judgments (Adams v. Perkins, 25 How. Pr. 368). The respondent exacted a percentage on the interest as well as the damages awarded by the original judgment, and this excess, after charging interest on the General Term judgment, must be deducted. If the respondent returns to the appellant’s attorney the twenty dollars aforesaid and the excess of interest as before suggested, the application for a re-taxation will be denied; otherwise it will be granted with costs. Settle order on notice and specify in the order to be settled the specific amounts to be returned.