Schermerhorn agt. Van Voast. SUPREME COURT. SCHERMERHORN agt. VAN VOAST. It is no ground for the readjustment of costs, that the clerk before whom they are adjusted refuses to allow 50 cents for entering the judgment. This fee belongs to him and he has a right to refuse it. An affidavit for allowance of travel fees of a witness is defective where it does not state the distance travelled by him as such (5 Hill, 595; 2 R. S. 653, §7). The statement merely of his residence, and the distance from where the trial is had, and his attendance, is insufficient. Where costs are adjusted upon opposition, and the amount inserted in the judgment, which is afterwards paid, it is too late to move for a readjustment of the costs. A party in interest can not be a witness, consequently can not be allowed fees for travel and attendance as a witness. Schenectady Special Term July 1851. On the 25th day of April 1851, the costs in this cause were adjusted upon notice, and opposition, by the clerk of the county of Schenectady at $34.82. The bill presented by the attorneys for the plaintiff amounted to $49-701; of the items claimed on the part of the plaintiff, the clerk disallowed 50 cents for entering judgment; $1.50 out of $3, for the attendance of witnesses two days each, and $12.88 charged for travelling fees for Jacob M. Schermerhorn from the place of his residence in the county of Cortland, to the city of Schenectady. After the costs were adjusted and the plaintiff's attorneys knew what items had been disallowed, they insisted that the judgment should be entered and docketed, although the defendant was present and offered to pay the damages recovered in the cause and the costs as they were adjusted; but after the judgment was entered, and on the same day, the defendant obtained specie and went to the office of the plaintiff's attorneys and paid the judgment, and the attorneys gave him a receipt for $366.77, therein stating that that sum "being the amount of the recovery in this cause, viz, $331.95 damages, and costs adjusted by the clerk, at $34.82, making together the judgment docketed by the clerk, &c." There is no intimation in the receipt, nor does it appear that any was given to the defendant at Schermerhorn agt. Van Voast. the time he paid the judgment, that an application would be made for a readjustment of the costs. On the 31st day of May 1851, the attorneys for the plaintiff gave notice to the defendant's attorney that a motion would be made at a special term of this court, thereafter to be held at the court house in Schoharie, for an order referring back the bill of costs to the clerk of the county of Schenectady for readjustment, by allowing to the plaintiff the several charges stricken out by the said clerk. The motion was made and granted by default, but the default was set aside, and the motion is now renewed. CADY, Justice. The fee of 50 cents for entering the judgment belonged to the clerk, and he had a perfect right to refuse to insert it in the adjustment of costs. The affidavit of B. F. Potter shows that the cause was called on the first day of the last circuit in Schenectady and the trial postponed at the request of one of the attorneys for the plaintiff, and that the cause was tried on the second day of the circuit, that the three witnesses for whose attendance two days each was claimed, resided in the city of Schenectady, and that one of them did not attend on behalf of the plaintiff. This affidavit shows that the clerk ought to have deducted $2, instead of $1.50, from the charge of $3, for the attendance of three witnesses two days each. The only remaining item was the charge of $12.88 for the traveling fees of Jacob M. Schermerhorn. No affidavit was submitted to the clerk in support of that claim, except that of Edward Rosa, Esquire, in which it was stated "That Jacob M. Schermerhorn, who resides in Homer, Cortland county, duly attended as a witness in this cause on behalf of the plaintiff; that he resides one hundred and sixty-one miles from the city of Schenectady where this cause was tried; that he attended one day and was a necessary witness." The clerk held this affidavit insufficient to warrant any allowance for the travel of Mr. Schermerhorn, and the clerk's decision is fully supported by the opinion of the late Supreme Court in the case of Ehle vs. Bingham (4 Hill, 595; 2 R. S. 653, §7). It is not claimed on the part of the plaintiff, that he has since the adjustment of the Schermerhorn agt. Van Voast. costs discovered evidence of any fact not then known, showing that an allowance for the travel of J. M. Schermerhorn ought to be made. This motion may be regarded as a motion for a new trial as respects the costs; but a new trial is not to be granted because the party who asks for it neglected to bring forward all the evidence in his power to support his claim. Again, suppose a jury erroneously reject one half the items of a plaintiff's account, but he enters up judgment on the verdict, and receives payment, it will then be too late for him to move for a new trial. Had he intended to move for a new trial he should have done it before he entered judgment on the verdict. So in this case, after the plaintiff knew how the clerk had adjusted the costs, if he then intended to move to have the costs readjusted, he should not have entered judgment for them as adjusted and received payment of the judgment. This as I understand the case is an answer to this motion. Another answer was given to the allowance of traveling fees to Jacob M. Schermerhorn. The defendant swore that Jacob M. Schermerhorn was the plaintiff in interest as he believed. Benjamin F. Potter, in his affidavit states that the said Jacob M. Schermerhorn was, as he believes, the real plaintiff in this action; and that the plaintiff's attorneys well knew that the said Jacob was the real plaintiff in interest; and that the said attornies on the day that the judgment was paid deposited the amount of the damages in the Mohawk Bank to the credit of the said Jacob and sent him a certificate of deposit therefor. Although a party making a motion is not ordinarily allowed to read affidavits in support of his motion, copies of which have not been served, yet in cases where the affidavits read in opposing a motion, introduces new matter which may operate as a surprise upon the moving party, he is sometimes allowed to have the motion stand over for the purpose of obtaining affidavits to contradict or explain the new matter alleged, especially when the new matter may tend to charge the moving party with bad faith; but in this case there was no request for leave to contradict the Mandeville Adm'r &c. agt. Winne. allegation that Jacob M. Schermerhorn was the plaintiff in interest in this cause. The affidavits on the part of the defendant unexplained, warrant a belief that Jacob M. Schermerhorn was the plaintiff in interest; and if so he could not have been sworn as a witness had he been offered as such. But independent of that objection, I am of opinion that the motion ought to be denied, with ten dollars costs. SUPREME COURT. MANDEVILLE, Adm'r, &c. agt. WINNE. A defendant must answer the complaint within the twenty days, prescribed by statute. He has not a right to answer after the expiration of the twenty days and before judgment is actually taken. Albany Special Term, July 1851. This was a motion to set aside a judgment and for leave to answer. The facts sufficiently appear in the opinion of the court. WM. H. KING, for Plaintiff. H. J. HASTINGS, for Defendant. PARKER, Justice.-The evidence is so contradictory, that I have doubted whether the complaint was served on the 5th or 6th of June. But I think I am bound to hold that the admission of the defendant, proved by the affidavit of Mr. King, outweighs, with the affidavit of the sheriff, the evidence on the part of the defendant, and shows the service to have been made on the 5th June. The answer then was not served till after the twenty days for answering had expired, viz., on the 26th of June. It is true the answer was served before judgment was entered, but I do not think it was therefore in time. The Code (§ 130) says "the defendant shall have twenty days to answer." The language is explicit. The time for answering is to be measured by days. No default is required to be entered at the expiration Mandeville Adm'r &c. agt. Winne. of that time, as was formerly the practice. If a rule for default was to be entered it would probably be best to regard the time for answering as extending to the entry of the rule, and to hold the taking of the default as the evidence of the plaintiff's intention to terminate the time for answering. But as no rule is required, and the time is prescribed by statute, both parties understand when the time for answering expires. It is the policy of our present practice to dispense with common rules in the progress of the action. They are no longer deemed necessary, to mark the limit within which a step is to be taken The default is now deemed to be taken at the end of the twenty days, as effectually as if a rule for that purpose was entered. The judgment is a subsequent step in the cause. A defendant never had the right to plead till judgment was entered but only till default. It is important to the plaintiff to know, before he proceeds to prepare to take judgment, whether a default is perfected. It would subject a plaintiff to great inconvenience and delay, to compel him to receive an answer at any time before judgment, particularly in a case where he applies to the court for judgment. A defendant might lie still till the plaintiff's counsel rose in court to move for judgment, with the witnesses present to prove the amount of damages, and then, by serving an answer, he would stop the proceeding and throw the cause over till another circuit. I think the only safe practice is to require the defendant to answer within the twenty days. If he can not do so, the time may be extended; and if by mistake the time has elapsed without answering, he may always be relieved on just terms. The answer then was not served in time; but the defendant swearing to merits, the judgment must be set aside and defendant must have leave to answer on paying costs of judgment and of motion-in all fixed at $15. |