Adolph v. De Cen.

consideration, it follows, in any case wherein an account, further account or bill of particulars is ordered, that if the pleading is verified, the account, further account or bill of particulars (terms sometimes used interchangeably) must be verified also.

If this interpretation be correct, the court below disposed of the motion properly and the order appealed from must be affirmed, with costs.*

ADOLPH, RESPONDENT, v. DE CEN ET AL., APPELLANTS.

SUPREME COURT, FIFTH DEPARTMENT, GENERAL TERM, JUNE, 1887.

SS 2947, 2948, subd. 1, 3070, 3262.

Appeal from justice's court-Costs-Who entitled to-Taxation-Counterclaim-When extinguished.

Where, in an action in a justice's court, the plaintiff recovered judgment for $200 and costs, and the defendant appealed therefrom, and thereafter the defendant was allowed to amend his answer by setting up a counter-claim for $380.95, and on the trial it was found that the plaintiff's claim amounted to $562, and the defendant's counter-claim

*The opinion of the justice determining this case at special term, is as follows:

NEHRBAS, J.-Section 531 of the Code requires a bill of particulars to be verified if the pleadings are verified. No distinction is made between items of an account or other particulars. The unverified bill was properly returned, and under the stipulation the answer is not yet due. The judgment was irregularly entered and must be set aside and a proper bill of particulars served before the answer need be served. $10 costs to defendant to abide event. See Hoag v. Western, 10 N. Y. Civ. Pro. 92.

Adolph v. De Cen.

to $459.69, and judgment was rendered in favor of the plaintiff for $102.31,-Held, that the judgment was more favorable to the plaintiff than that rendered in the justice's court, and also exceeded the amount of an offer to accept judgment for $150 made by him; that, in determining the right to costs in such a case, the counter-claim extinguished by the determination should be taken into consideration. Where the plaintiff in an action in a justice's court recovers judgment, counter-claims existing in favor of the defendant, but not pleaded, which exceed the amount of plaintiff's recovery by $200, are not extinguished thereby.

Where a taxation of costs in favor of the defendant in an action is set aside for the reason that plaintiff is entitled to costs, the court should not adjust the costs, but should direct the clerk to tax them in favor of the plaintiff.

(Decided June 25, 1887.)

Appeal by defendant from an order of the special term of the superior court of Buffalo, setting aside a taxation of costs in favor of the defendant and allowing the costs to plaintiff.

The opinion states the facts.

Frank R. Perkins, for defendants-appellants.

George Osgoodby, for plaintiff-respondent.

SMITH, P. J.-The following facts appear by the stipulation of the parties. Judgment was rendered in a justice's court in the city of Buffalo, November 16, 1878, in favor of the plaintiff against the defendants, for $200 damages and $5.28 costs. The complaint in the justice's court alleged that defendants were indebted to plaintiff for whiskey barrels sold to, and cash paid for, defendants, and demanded judgment for $200. The answer was a denial only. The defendants appealed from the judgment to the superior court, for a new trial, alleging certain grounds of appeal, and stating that the judg ment should have been more favorable to defendants, in

Adolph v. De Cen.

A

that it should have been in favor of plaintiff for $30 instead of $200. On December 10, 1878, an offer to modify the judgment so as to reduce the recovery to $150, was made by the plaintiff, but it was not accepted. February 14, 1879, the appellants obtained an order in the superior court, giving them leave to amend their answer, and they accordingly served an amended answer, which set up (in addition to the answer in the justice's court), payment of $100 and upwards, and counter-claims amounting to $380.95, and demanded judgment against plaintiff for $450, besides costs. reply was served to the counter-claim, and the cause was referred for trial. The referee reported that defendants were indebted to plaintiff in the sum of $562, and that under their amended answer they established counterclaims amounting to $459.69, which, deducted from plaintiff's claim, left a balance due plaintiff of $102.31, which, with interest upon it to date of report, amounted to $105.20. By the judgment in the superior court, the counter-claims of the defendants set up in their amended answer to the amount of $459.69 were satisfied and canceled, and a recovery for $105.20 in addition was had by the plaintiff. Judgment was entered May 19, 1886, on the report, for $105.20, with interest from date of report, $44.85, making $150.05, besides costs.

Upon these facts, we think the plaintiff is entitled to costs, for the reason that the counter-claims extinguished, and the sum reported in his favor, exceed in amount not only the sum which he offered to accept in satisfaction of the judgment, but also his recovery in the justice's court. (Code Civ. Pro. § 3070; Tompkins v. Ives, 36 N. Y. 75, and cases there cited by FOSTER, J.). The appellants'

counsel contends that the counter-claims should not be taken into the account, they having been extinguished, as he claims, by the justice's judgment. In that he is mistaken. Section 2947 of the Code of Civil Procedure, cited by him, does not apply, for the reason that the amount of

Adolph v. De Cen.

the counter-claims is $200 more than the judgment recovered before the justice (Code Civ. Pro. § 2948, subd. 1).

It follows that, so far as the order appealed from denies costs to the defendants and holds that the plaintiff is entitled to costs, it is right.

But in allowing to the plaintiff, as his costs and disbursements, the sum of $70.25, at which they were taxed by the clerk, ex parte, the order is erroneous. Instead of doing that, it should have set aside the taxation of the clerk and sent the matter back to him with a direction to retax the plaintiff's costs on notice.* The defendants have not been heard before the taxing officer upon the items of the bill.

The costs were first taxed ex parte, entered in the judgment, and notice of retaxation was then served. Defendants appeared, and insisted that the plaintiff was not entitled to costs, but that the clerk should tax costs in favor of the defendants, and they presented their bill for that purpose. The clerk ruled accordingly, and taxed defendant's costs, and consequently there was no hearing upon the items of the plaintiff's bill, and no occasion to call them in question.

The order appealed from should be modified in accordance with these views, and, as so modified, affirmed, without costs of this appeal to either party.

HAIGHT and BRADLEY, JJ., concur.

*Code Civ. Pro. § 3262. See also Higgins v. Callahan, 2 N. Y. Civ. Pro. 302; Mathews v. Matson, 3 Id. 157; O'Loughlin v. Geo. H. Hammond & Co., 11 Id. 170.

Coffin v. North-Western Construction Co.

COFFIN AND ANOTHER V. NORTH-WESTERN CONSTRUCTION COMPANY.

SUPREME COURT FIRST DEPARTMENT, NEW YORK COUNTY, CHAMBERS, OCTOBER, 1887.

$648.

Attachment-What is sufficient taking of property into possession of sheriff to constitute a levy.

Where a sheriff to whom an attachment had been issued, demanded of a trust company the delivery to him of bonds belonging to the defendant, and, upon the company's refusal to make delivery, threatened to break open the safes of the company, and forcibly take possession thereof, whereupon it was agreed that the bonds should be placed in the sheriff's view, and that he should thereupon take them into his possession and levy upon them, but they should be returned to the trust company to be held by it as his depository,-Held, that the sheriff had levied upon such bonds and had sufficiently taken them into his possession to entitle him, upon a settlement of the case, to fees for making the levy; that, if the sheriff saw fit to take the risk, he could, after making the levy, place the bonds in the custody of the trust company as his depository.

Warner. Fourth National Bank (12 N. Y. Civ. Pro. 186), Anthony v. Wood (6 Id. 164) distinguished.

(Decided October 5, 1887.)

Taxation of sheriff's fees upon attachment.

This action was brought to recover $52,500 damages for breach of a contract. On June 22, 1887, an attachment was issued against the property of the defendant to the sheriff of the city and county of New York, in conformity with which the sheriff sought to attach 100 bonds of the Kansas City, Wyandotte & North-Western Railway Company, of the par value of $1,000 each, the property of the defendant, which were in the possession of the Central Trust Company of New York, and did so attach them in