KLINCK against KELLY

KLINCK against KELLY. Supreme Court, First District; Special Term, 1873. Double Costs. Double costs, when allowed under the statute, are computed on the whole taxed bill, including disbursements. In this action, which was brought by Seth H. Klinck against John Kelly, sheriff, &c., the clerk, on adjusting defendant’s costs, after a verdict in his favor, allowed to him, as “double costs,” one-half the whole taxed bill of costs and disbursements. There having been a new trial ordered in the action, the clerk allowed to defendant five circuit term fees, after the order for a new trial, in addition to five like term fees before the first trial. Plaintiff appealed to the special term from this adjustment. Orlando L. Stewart, for plaintiff, Argued that the provisions of 3 Rev Stat., 908, § 4, in connection with the provisions of the Code as to costs, limited the allowance of double costs to the items designated as costs in the Code. Also, that under § 307 of the Code, no more than five term fees could be allowed. J. R. Cuming, for defendant, the sheriff, Cited as to double costs, Code, § 303 (allowing certain sums "termed costs,” but not enacting that any item previously denominated or treated as costs, should cease so to be), Roys v. Willet [MS. Opinion Bosworth, J., 1861]; Jackson v. Lynch, Superior Court, 32 How. Pr., 93 ; Code, § 471; Bartle v. Gilman, 18 N. Y., 262, 264, 265; Chadwick v. Brother, 4 How. Pr., 284 ; 3 Rev. Stat., 909, § 5. In Roys v. Willet, which was an action against the sheriff, in which he prevailed, the clerk taxed the whole bill of costs and disbursements, and to the gross sum added one-half as double costs, and the plaintiff appealed to the court. The portion of the opinion (by Bosworth, J.) relating to this point was as follows: Fourth: As to double costs. Bartle v. Gilman, 18 N. Y., 260, determines that the provisions of the Revised Statutes giving double costs to public officers (2 Rev. Stat., 617, § 24), is not repealed by the Code. Rot being repealed, that law' prescribes what items are to be computed in fixing the sum to be paid as double costs. Sections 24 and 25 (2 Rev. Stat., 617), show what is meant by double costs. They consist (first) of the whole sum included in a bill of costs, and taxed as costs, and (second) of one-half that sum, ■ in addition to the ordinary or single bill of taxed costs (Patchin v. Parkhurst, 9 Wend., 443; Stainland v. Ludlum, 8 B. & C., 889). The Code, §§ 258, 303, abolished all laws regulating “the costs or fees of attorneys, solicitors and counsel in civil actions,”, and in lieu thereof gave to the prevailing party certain sums by way of indemnity ; which sums or allowance it denominates costs. But it does not interfere with the rates of compensation to witnesses or jurors, nor enact that any item previously denominated or treated as costs, and still taxed in favor of the prevailing party, shall cease, to be so denominated or regarded. The principle on which the clerk acted in doubling the costs, is the true one. [MAJORITY — Fancher, J.] Fancher, J. Where a sheriff succeeds in Ms de- . fense, he is entitled to “ double” costs, including disbursements ; that is, to the adjusted bill of costs and disbursements, fifty per cent, more must be added. The statute as to double costs is not affected by the Code. Subdivision 7 of section 307 of the Code allows but • five term fees, and no more. All above that number must be stricken from' the bill.