Opinion
April 3, 1914.
Henry S. Mansfield and Merritt E. Haviland, attorneys, for the appellants.
Henry Franklin, for the respondent.
This action was brought to foreclose a tax lien on real property sold by the city of New York pursuant to the provisions of title 5 of chapter 17 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1908, chap. 490), providing for the taxation and sale of land in the city of New York for unpaid taxes.
The plaintiff purchased the tax lien sought to be foreclosed from the city at public auction, the aggregate amount of said tax lien so transferred being $407.22. Section 1035 of the Greater New York charter (added by Laws of 1908, chap. 490, as amd. by Laws of 1911, chap. 65), providing for the foreclosure of a tax lien, provides, inter alia, as follows: "Except as otherwise provided in this title an action to foreclose a tax lien shall be regulated by the provisions of the Code of Civil Procedure and by all other provisions of law and rules of practice applicable to actions to foreclose mortgages on real property."
The defendants, before service of summons had been effected upon all of the defendants, offered to pay the proper amount due upon said lien and the proper amount of costs and disbursements to obtain a discontinuance of the action and a canceling of said lien. The plaintiff's attorney claimed as follows:
Principal .................................................. $407 22 Costs For before trial ........................................... 25 00 For service of summons ..................................... 3 00 For filing lis pendens ..................................... 50 For allowance on settlement ................................ 30 36 For search, unofficial and not made by a title company ..... 75 00 For examination of title ................................... 125 00 ________ $666 08 ========
The defendants objected to the $200 for search and examination of title and to the allowance on settlement of $30.36, claiming that under the act in a settlement of foreclosure, the amount involved being only $407.22, plaintiff is only entitled to $15.18.
The plaintiff's attorneys having refused to accede to the defendants' views, the defendants made a motion for an order of discontinuance upon payment of the amount of the lien and taxable costs.
Thereupon the court made an order that the case be discontinued upon the payment of the principal of said tax lien and the statutory costs and allowances to be taxed, and appointed a referee to ascertain the amount to which the plaintiff is entitled for the expense of searching and examining the title to the property sought to be foreclosed. From the latter part of the order the defendants appeal.
In our opinion the disbursements claimed for the search and for the examination of title cannot be taxed. Section 3256 of the Code of Civil Procedure provides what disbursements are to be included as necessary disbursements in a bill of costs. Official searches are there provided for and those made by title insurance, abstract or searching companies, organized and doing business under the laws of this State. There is no claim that the search here in question was official or made by such company. Statutory costs are a matter of right, but authority for an item claimed must be found in the statute. As certain kinds of searches are specifically provided, no others are to be included; expressio unius est exclusio alterius.
In reference to the claim of thirty dollars and thirty-six cents for "allowance on settlement," section 3252 of the Code of Civil Procedure provides: "Where the action is brought to foreclose a mortgage upon real property; * * * the plaintiff, if a final judgment is rendered in his favor, and he recovers costs, is entitled to recover, in addition to the costs prescribed in the last section, the following percentages, to be estimated upon the amount found to be due. * * *
"Upon a sum, not exceeding two hundred dollars, ten per centum.
"Upon an additional sum, not exceeding four hundred dollars, five per centum.
"Upon an additional sum, not exceeding one thousand dollars, two per centum.
"Where such an action is settled before judgment, the plaintiff is entitled to a percentage upon the amount paid or secured upon the settlement, at one-half of those rates."
This action having been settled before judgment plaintiff is only entitled to one-half of the amount claimed, to wit, fifteen dollars and eighteen cents.
The order appealed from should be modified by providing that the action be discontinued upon the payment of the principal of said tax lien and the statutory costs and allowances, amounting to forty-three dollars and sixty-eight cents, and as so modified affirmed, with ten dollars costs and disbursements to the appellants.
INGRAHAM, P.J., SCOTT, DOWLING and HOTCHKISS, JJ., concurred.
Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to appellants. Order to be settled on notice.