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Appellate Division.

[Apr.

deprive her of that right. The question of the effect of a provision in an order granting a party leave to answer upon payment of costs to date upon the right, in case of success, to again tax a full bill of costs, has been frequently before the courts, but has resulted in conflicting decisions, which we shall not atempt to reconcile. We think, however, that the view of the general term of the court of common pleas in Cohn v. Husson, 13 Daly, 334, is supported by reason. In the opinion in that case it was said:

"It is objected that the 'costs to date,' having been paid under the order imposing those terms as a condition of amendment, cannot be recovered again in the judgment entered by the party who has received them. The city court held that he could; following the New York superior court in Havemeyer v. Havemeyer, 48 Super. 104; holding that the order imposing 'payment of costs of the action to the present time,' as a condition of amendment, contemplated only a compensation to the plaintiff for the amendment, to be measured by the taxable costs to the time of its entry. This view seems to be reasonable. Any other construction would, in the event of ultimate recovery by the

TAXATION OF COSTS PREVIOUSLY PAID AS TERMS,-continued.

Lennon v. McIntosh, 19 Abb. N. C. 175.

Starr Cash Car Co. v. Reinhardt, 6 Misc. 365.

Kummer v. Christopher & Tenth Street R. R. Co. 12 Misc. 387; 67 St. Rep. 404; 33 Supp. 581; 24 Civ. Pro. 404.

Thus, where the defendant was allowed to amend his answer upon payment of a certain sum designated in the order as "costs," his adversary is not deprived of the right to tax a full bill of costs if successful.

Colin v. Husson, 3 How. Pr. N. S. 130.

In the case last cited the court said: "I take it for granted when an amendment is allowed upon condition of payment of money, that the plain purpose of such payment is the compensation to the opposing party for the additional labor and trouble imposed upon him by reason of it, and the payment of moneys has no other purpose......and that the fair construction would seem to be that, the court having fixed upon the amount of this compensation to be paid, the opposing party had used the term costs as a convenient measure of designating such compensation, and that it had no technical or different meaning.”

The payment of costs as a condition of amendment by the defendant of his

1900]

party who had received the costs, deprive him of the compensation intended as an offset to the favor granted to his adversary." And in the case of Havemeyer v. Havemeyer, 48 Super. 104, 105, it was said:

Cahill v. New York.

"The condition was not, as the plaintiffs now claim, that the defendants should pay the plaintiff's costs, and, in addition, submit to the loss of their disbursements, though they should finally succeed in the action. Language very different from that which was used would be required, to maintain this proposition. Nor can I perceive that the imposition of the condition was in legal effect a final disposition of the costs of the whole litigation on both sides up to that time. to that time. The order having been made during the pendency of the issues, and in the exercise of the discretion of the court, and in respect to a matter of pleading, merely, it contemplated, not a final and complete disposition of all costs that had accrued up to that time, as such, but a compensation to the plaintiffs for the amendment, to be measured by the taxable costs to which they would have been entitled in case then and there they had succeeded. The same ruling was made by the special term of this court in Donovan v. Board of Education, 1 Civ. Pro. 311."

The injustice in the application of any other rule could not be more apparent than in the present action, wherein, after the case

TAXATION OF COSTS PREVIOUSLY PAID AS TERMS,-continued.

answer does not preclude the plaintiff, who is finally successful, from again taxing such costs.

Starr Cash Car Co. v. Reinhardt, 6 Misc. 365; 56 St. Rep. 404; 26 Supp. 746.

So, costs paid by the defendant as terms for the granting of a new trial may be taxed by the plaintiff if the latter succeeds in the action.

Kummer v. Christopher and Tenth Street R. R. Co. 12 Misc. 387; 67 St. Rep. 404; 33 Supp. 581; 24 Civ. Pro. 404.

Where the defendant was permitted to open a default taken at the trial term, upon condition of the payment to the plaintiff of $20 costs and certain witness fees, the plaintiff is entitled upon recovery at a subsequent trial, to tax the full bill of costs, without deducting the $20 paid to open the default. Lennon v. McIntosh, 19 Abb. N. C. 175.

Appellate Division.

had been at issue for three years, an application was made to amend the answer by setting up the statute of limitations, which was granted upon payment of the taxable costs; and this payment having been made as a condition to the granting of the favor, is now held to be an obstacle to the right which the plaintiff has, as the successful party, under the Code, to tax a full bill of costs. In providing for the payment of the "taxable costs to date," what was done by the court was to adopt a method which would be fair for fixing the amount which the defendant should pay for the favor granted in being allowed, after so long a time, to interpose a defense or a new issue in the case. If, upon plaintiff's succeeding, the defendant is to be credited with the amount thus paid, it really has paid nothing for the favor granted, and the plaintiff has obtained no compensation for the additional labor, expense, and delay entailed by the amendment to the answer allowed. We think the order appealed from should be reversed, with costs, and the motion to retax the costs should be granted, with $10 costs.

VAN BRUNT, P. J., concurs.

Motion denied, without costs.

TAXATION OF COSTS PREVIOUSLY PAID AS TERMS,-continued.

The court making the order imposing the payment of costs as a condition to the granting of a favor, is at liberty to construe such order and to say whether or not double costs were intended, and its construction will not be interfered with by the higher court.

Cohn v. Husson, 12 Daly, 334; 6 St. Rep. 292.

Havemeyer v. Havemeyer, 48 Super. 104.

Starr Cash Car Co. v. Reinhardt, 6 Misc. 365; 56 St. Rep. 404; 26 Supp. 746.

Although, as previously appears, the cases decided in New York City are conflicting, it would seem, by the weight of authority in this state, that a party to whom costs are paid for the granting of a favor to his adversary, cannot again tax the same upon his ultimate success in the action.

This conclusion was reached after a careful review of the authorities in Byrne v. Brooklyn City & Newton R. R. Co. 6 Misc. 6; 58 St. Rep. 121; 26 Supp. 65, and is also in accordance with the decision in the text.

Cake v. Haight.

CAKE v. HAIGHT.

[30 Misc. 386; 97 St. Rep. 1043; 63 Supp. 1043.]

(Supreme Court, Special Term, New York County. January, 1900.)

1. PROCESS SERVICE-ATTENDANT ON TRIAL.

A resident who had been sojourning out of the state to avoid service of process, and voluntarily came within the state to testify in a legal proceeding, and attend as a party, could not be served with process while coming, attending court, or returning, provided he returned with reasonable dispatch.

2. SAME-RETURN HOME-REASONABLE DISPATCH.

A sojourner in Jersey City, who came to New York City to attend a trial, and, when the case was not called, remained till half past 7 in the evening, was not exempt from service of process, since he did not return with reasonable dispatch.

Action by Horace M. Cake against Henry Jansen Haight. Motion to set aside the service of a summons. Denied.

NOTE.-EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS.

a. In what cases exemption exists.

1. In general.

2. Parties.

3. Witnesscs.

4. Arrest.

b. Forfeiture of privilege.

1. Acts before service.

2. Inconsistent acts or delay in asserting privilege after service.

a. In what cases exemption exists.

1. In general.

The exemption is not of statutory origin, but is a very ancient privilege accorded by the common law.

Matthews v. Tufts, 87 N. Y. 568.

Parker v. Marco, 136 N. Y. 585; 32 N. E. 989.

Special Term.

D. J. M. O'Callaghan, for the motion.

Murray, Bennett & Ingersoll, opposed.

BEEKMAN, J. The defendant was served with the summons in this action in the city of New York on November 13, 1899. He now moves to set the service aside on the ground that he was then within the state for the sole purpose of attending the trial of an action which was then pending in this court, and triable in this county, and that he was privileged from the service of process upon him while here for that reason. He does not claim that he was, in a strict sense, a nonresident of the state, but that since about March, 1898, he has been sojourning at various places in the state of New Jersey, and that since May 2, 1899, he has been residing at No. 98 Mercer street, in Jersey City, in said state, sleeping there every night except during the few days when he

[Jan.

EXEMPTION OF PARTIES AND WITNESSES FROM SERVICE OF PROCESS-continued.

The privilege continues while the person entitled to it is coming to, remaining at, and returning from court.

Person v. Grier, 66 N. Y. 124.

Pritsch v. Schlicht, 5 St. Rep. 871.

Sebring v. Stryker, 10 Misc. 289; 63 St. Rep. 243; 30 Supp. 1053; 24 Civ. Pro. 126.

And the party entitled to the exemption has a reasonable opportunity to return home.

Brett v. Brown, 13 Abb. Pr. (N. S.) 295.

Such exemption extends to every proceeding of a judicial nature, taken in or emanating from a duly constituted tribunal, which directly relates to the trial of the issues involved.

Parker v. Marco, 136 N. Y. 585; 32 N. E. 989.

But in order to be entitled to the exemption, the person asserting it must be a party or witness in an action or special proceeding.

Michaels v. Hain, 78 Hun, 500; 61 St. Rep. 234; 29 Supp. 567.

Thus a resident of another state attending the taking of depositions in this state, cannot claim the exemption by reason of the fact that he holds a chattel mortgage upon the stock of goods sought to be replevied in the action in which such depositions are taken and is a brother of the defendant's assignor for the benefit of creditors.

Michaels v. Hain, 78 Hun, 500; 61 St. Rep. 234; 29 Supp. 567.

There has been considerable divergence in the decisions of the lower

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