Opinion
June, 1909.
Henry Kuntz (A. Pinkney Wilkes, of counsel), for appellant.
Joseph Rosenzweig, for respondent.
When this action came on for trial, the defendant moved to dismiss the complaint, upon the ground that it did not state facts constituting a cause of action. Plaintiff thereupon moved for leave to withdraw a juror, in order to enable him to apply at Special Term to amend the complaint. This motion was granted upon payment of "a trial fee, to wit, the sum of $30." Thereafter, the plaintiff moved at Special Term of the City Court for leave to amend the complaint, and such leave was granted upon payment of "taxable costs of the action." Upon an affidavit setting forth that the plaintiff paid the thirty dollars, imposed by the trial justice as a condition for leave to withdraw a juror, and that the defendant had noticed a bill of costs to be taxed before the clerk, upon the order granted by the Special Term allowing the defendant the taxable costs in the action as a condition for amending the complaint, and had included therein the item of thirty dollars first imposed, and that the said item had been objected to and allowed by the clerk, the plaintiff moved at Special Term for a retaxation of costs and to have the said item disallowed. This motion was denied, and, from the order denying the motion, the plaintiff appeals. There is nothing in the moving papers showing that the alleged erroneous item of thirty dollars was ever entered in any bill of costs and taxed by the clerk. No bill of costs was submitted; and nothing was before the Special Term, showing what occurred before the clerk upon the taxation of costs, if any there was before him. It is true the plaintiff, in his moving affidavit, asserts that the said item was objected to and allowed by the taxing officer; but whether the objection was verbal or written and what papers, bill of costs or record was before the clerk upon such alleged taxation does not appear. It devolved upon the plaintiff to show to the court, clearly and explicitly, what took place before the clerk in order to enable it to pass upon his action. "If there was any reason why the plaintiff was not entitled to tax the * * * it was incumbent upon the defendant to present legal evidence of that fact to the clerk in order that he might judicially pass upon and determine the question." Lyman v. Young Men's Cosmopolitan Club, 38 A.D. 220, 222. Nothing was shown to the Special Term that a bill of costs was presented to the clerk, and by him allowed, containing the item of thirty dollars, and that the same was on file in his office, nor was it shown that the defendant refused to accept service of the amended complaint unless such item of thirty dollars was paid. Upon a motion for a retaxation, only such papers can be used as were used before the clerk. The appeal to the court is intended to review the errors actually committed before the clerk at the time of the taxation, and he cannot be put in error by proof furnished to the court afterward. La Rosa v. Wilner, 54 Misc. 574, and cases there cited. In the case of Ferguson v. Wooley, 9 Civ. Pro. 236, cited by appellant, it was held "that it was not necessary to serve copies of the papers used before the clerk;" but this is far from holding that the papers, if any were used before the clerk, need not be presented to the Special Term. In fact, that same case holds that the moving party should obtain and present a certificate of the clerk showing fully what papers or records were used, and then produce to the court the original or certified copies. It is improper to use any other papers, except so far as they may be necessary to show the clerk's action. "This is so for the reason that the motion for retaxation is in the nature of an appeal from the action of the clerk." Lyman v. Young Men's Cosmopolitan Club, supra. It follows, therefore, that the court below had nothing before it upon which to determine whether or not the clerk's action was justified, and the motion should have been dismissed, with costs.
Order modified, by providing that the same be dismissed, with ten dollars costs, and, as modified, affirmed, with ten dollars costs and disbursements.
MacLEAN and SEABURY, JJ., concur.
Order modified, and, as modified, affirmed, with ten dollars costs and disbursements.