Bates v. Norris.

BATES, RESPONDENT, v. NORRIS, APPELLANT.

SUPERIOR COURT OF THE CITY OF NEW YORK, GENERAL TERM, JANUARY, 1888.

§§ 1228, 3228.

Costs-Right to, where defendant serves supplemental answer, setting up payment after commencement of suit-Payment of costs on service of supplemental answer— -Stipulation between attorneys Judgment-When one entered upon, referee's report not set aside.

A judgment entered upon the report of a referee wil not be set aside on motion where it follows the report, on account of an erroneous decision of the referee; the proper mode of review in that case is by appeal.

In an action in which the complaint demands judgment for a sum of money only, the plaintiff is not entitled to costs unless he recovers $50 or more. The fact that the plaintiff's demand was greater than $50 does not entitle him to costs because the recovery was reduced to less than $50 by payments made subsequent to the commencement of the action and set up in a supplemental answer, and neither the court nor a referee before whom the case was tried has power to give the plaintiff in such case costs unless the recovery exceed $50.

A provision in a referee's report in an action wherein the complaint

demands judgment for a sum of money only, that a plaintiff recovering less than $50 is entitled to costs, is void, and does not authorize the clerk of court to enter judgment for costs. Where, after the commencement of an action, the defendant paid a part of the claim in suit and seeks to set up payment, by a supplemental answer, the plaintiff should insist upon payment of his costs in the order granting leave to serve such supplemental answer, and failing to obtain a provision entitling him to costs in such order, his right to costs depends upon the amount of his recovery. The court cannot enforce a verbal stipulation between attorneys that payments made on account of a demand set up in the complaint in an action shall not affect the right of the plaintiff to his costs; such

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Bates v. Norris.

stipulation, if in the action, being within the provision of rule 11 of the General Rules of Practice and not enforceable unless in writing: and if it was an agreement outside the proceedings in the action it could not affect the right to costs.

(Decided January 3, 1888.)

Appeal by defendant from an order denying his motion to set aside the judgment herein entered upon the report of a referee appointed to hear and determine; and also appeal by defendant from an order directing the clerk of this court to retax the plaintiff's appeal to allow him full costs.

This action was brought to recover an unpaid balance of the alleged value and agreed price of certain advertisements inserted by plaintiff for defendant in several newspapers published in the city of New York. The sum for which the complaint demanded judgment was $92.54, with interest from September 1, 1885. The answer of the defendant was a general denial. On March 21, 1887, an order was made and entered herein, referring the issues for hearing and determination, and on May 18, 1887, notice of hearing before the referee on June 2, 1887 was duly served. Thereafter, the hearing before the referee was adjourned, from time to time, until August 17, 1887, at 2 P.M. After issue joined, the defendant paid the plaintiff $100 as follows, viz., April 1, 1857, $50; June 2, 1887, $25; June 15, 1887, $25; and on August 9, 1887, after notice to plaintiff, leave was granted him to serve within twenty days a supplemental answer setting up such payments. On August 22, 1887, he served such supplemental answer. On August 17, the date to which the reference was adjourned as above stated, the plaintiff attended before the referee, but the defendant did not, and the referee, therefore, heard the plaintiff's proofs, and subsequently filed a report in which he found the facts to be as alleged in the complaint; that at the time of the commencement of the action the plaintiff was indebted to the

Bates v. Norris.

defendant in the sum of $92.54, with interest from September 1, 1885; that payments on account had been made by defendant after the commencement of the action, and that, after adding interest to the plaintiff's claim to the date of the payments, and deducting the payments, there was due the plaintiff at the date of the report (August 30, 1887), the sum of $1.66 with interest thereon from June 15, 1887, together with the costs of the action. On this report, the plaintiff, on September 10, 1887, entered judgment for $1.66 damages, and $85.59 costs.

Thereafter, the defendant moved upon affidavits to vacate and set aside the judgment. His motion was denied, and he appealed therefrom. The costs entered in the judgment were taxed without notice, and a notice of readjustment given. On the readjustment, the defendant appearing and opposing, the clerk disallowed the entire bill, and the plaintiff thereupon moved at special term for a new adjustment. The court at special term directed the clerk "to readjust the bill of costs of this action presented by the plaintiff and to allow the plaintiff full costs as though the recovery had been for $50 or more," and the defendant appealed from the order so directing.

Wyatt & Trimble, for defendant-appellant.

Plaintiff, having recovered less than $50.00, is not entitled to costs. In such an action a plaintiff is not entitled to costs unless he recovers the sum of $50.00 or

more.

It must follow therefore, that plaintiff having recovered less than $50,-namely, $1.66,-is not entitled to costs, and defendant is. . . . That the action was commenced to recover more than $50 does not affect the question. He must recover more than $50. He chose to accept payment, and proved a portion of such payment before the referee, and recovered less than $50. The defendant, and not plaintiff, was entitled to costs. Rice v. Childs, 28 Hun, 303; Brown v. Richardson, 7 Rob.

57; Bendit v. Annesly, 27 How. Pr. 104; Keeler v. Van Wie, 49 Id. 97. . . The fact that the referee directed judgment for costs cannot help the plaintiff; the former had no power to disallow costs; his direction should have no effect. Fuller v. Conde, 47 N. Y. 90; Benedict v. Hale, 4 N. Y. Civ. Pro. 316; Lanz v. Trout, 46 How. Pr. 94; Sturges v. Spofford, 68 N. Y. 103; Broadway v. Scott, 31 Hun, 378-381... Any agreement or understanding to pay costs is denied by defendant. It is not pretended or claimed that the agreement is in writing or reduced to the form of an order. It is, therefore, a very proper case for the application of rule 11, of the general rules, that is, "No private agreement or consent between the parties or their attorneys in respect to the proceedings in a cause shall be binding, unless the same shall have been reduced to the form of an order by consent and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel." Mason & Hamlin Organ Co. v. Pugsley, 19 Hun, 232. . .

The motion to set aside the the judgment was the proper remedy. There was nothing due plaintiff, and defendant had the right to show this and set the judgment aside. Even allowing that $1.66 was due, this motion to set aside the judgment was proper. Jones v. Cook, 11 Hun, 230; Broadway v. Scott, 31 Id. 378 . . . In Black v. O'Brien 23 Id. 82, an order setting aside a judgment for costs was affirmed. Leonard v. Columbia Steam Nav. Co., 84 N. Y. 55; Binsse v. Wood, 37 Id. 526; Hammond v. Morgan, 101 Id. 179, 188; Syms v. Mayor, 105 Id. 153; Sugden v. Hughes, 27 Iun, 373... The judge below in his opinion states that the question should have been presented on appeal from the judgment. The learned judge overlooked the fact that an appeal would not lie from the judgment, which had been taken by default, the hearing before the referee being by default. Stoughton v. Lewis, 1 How. Pr. N. S. 98; James v. Russell, 58 N. Y.

Bates v. Norris.

388; Flake v. Van Wagenen, 54 Id. 25; James v. Shea, 28 Hun, 74; S. C., 98 N. Y. 625.

Philip Carpenter, for plaintiff-respondent.

This motion to vacate the judgment was properly denied.... The judgment cannot of course be vacated upon the ground that costs were improperly allowed.

The defendant's right in this regard can all be settled on his appeal from the order directing the clerk to tax costs. Rice v. Child, 28 Hun, 303, 407.

If a judgment can be disturbed at all for an error of the referee in directing judgment for costs, it must be by appeal from the judgment and cannot be done on a motion to vacate the error as one of lav.

"The report stands at the decision of the court." Code Civ. Pro. § 1228. . . . The order directing the clerk to tax full costs was properly granted, because: First. The original claim was for $92, and was only reduced to less than $50 by payment after the action was commenced. The question is settled by the case of Rice v. Child, 28 Hun, 303. . . . The plaintiff in this case protected himself exactly as the court in Rice v. Child said he could protect himself.

The point made by defendant's present counsel, that as the defendant's agreement to pay costs was.not in writing, it should not be regarded, because of rule 11, should not prevail. The rule has no application where a party has been led to rely on the stipulation to his disadvantage. Court rules (Hun, 1884), p. 89, notes 8, 9, and cases cited; People v. Stephens, 52 N. Y. 306, 310, 311.

Again, this agrement was not "in respect to the proceedings in a case" within the meaning of rule 11. It was simply in reference to the receipt of money in settlement of the cause of action and costs.

The clerk had no discretion but to tax full costs. The report of the referee orders judgment for costs in so many words: "The report stands as a decision of the court."