Niblo agt. Binsse.

SUPREME COURT.

WILLIAM NIBLO agt. JOHN BINSSE, Executor, and LOUISA LA FARGE, Executrix of JOHN LA FARGE, deceased.

-the

The following is the dissenting opinion of Judge SUTHERLAND, in this causeopinion of the court is published in 31 How., 476.

SUTHERLAND, J. It was certainly irregular to enter judgment for costs against the executors, without an application to the court, and special leave granted.

The referee was not the court, and had no power to award costs against the executors. The plaintiff could not by any allegation or allegations in his complaint, make the question of costs a proper question for the referee to try or determine.

The plaintiff's motion for an extra allowance, and the order made for an extra allowance, assumed that the referee had power to award costs, and had awarded them; for clearly an order for an extra allowance of costs, could not be made before the plaintiff's right to recover their general or ordinary taxable costs had been determined.

The statute does not permit the recovery of costs against executors, unless it appear that the demand was unreasonably resisted or neglected, or that they refused to refer the same. (2 R. S. 90, § 41; Code, § 317.)

In this case, it is impossible to say that the executors refused to refer the same, unless a refusal to pay is, or should be, regarded as a refusal to refer. The very words of the statute would appear to forbid such a construction of it. The refusal to refer is one thing, and the unreasonable resistance or neglect of payment is another thing. They do not mean the same thing, in or out of the statute.

The question is, then, did the executors unreasonably resist or neglect the payment of the demand or claim? In view of the history of the case, and of the litigated questions in it, how can we say that they did? On the first trial they obtained a judgment, which was affirmed at general term, but reversed in the court of appeals. We must conclude

Jackson agt. Lynch.

that the question of their liability was a question of liability under special circumstances, and by no means free from doubt. It certainly cannot be said that the motion papers on the part of the plaintiff show that the demand was unreasonably resisted or neglected by the executors, and it was for the plaintiff to show this. It appears that the executors would have successfully resisted the demand, had it not been for the lucky hit or persevering energy of the plaintiff in carrying the case to the court of appeals.

I cannot see that the fact that the attorney of the executors did not insist before the referee, on the trial, or clerk, on the adjustment, of costs, or before the court, on the motion for extra allowance, that the plaintiff could not recover costs without a special application to the court, can or ought to estop the executors from insisting upon their protection from costs under the statute. I can see no way to affirm the orders appealed from, without disregarding the statute.

I think both orders should be reversed, and the costs stricken from the judgment.

NEW YORK SUPERIOR COURT

DAVID JACKSON agt. JAMES LYNCH, Sheriff, &c.

A sheriff on succeeding in his defense to an action, is entitled to double disbursements, as well as double costs.

Special Term, February, 1866.

In this case, the clerk in adjusting costs of defendant, gave him double costs, but declined to double the defendant's disbursements.

The only question on this appeal is, is the defendant entitled to double disbursements?

IRA D. WARREN, for plaintiff.

I. The Code draws a clear distinction between costs and disbursements. Section 305 provides that "costs shall be allowed of course to the defendant," &c. Section 307 pro

Jackson agt. Lynch.

vides, "when allowed, costs shall be as follows," giving the amounts and items allowed as costs. Section 311 provides, "that the clerk shall insert in the judgment the sum of allowances for costs, the necessary disbursements," &c. The disbursements shall be stated in detail, and verified by affidavit. Therefore, we say, costs and disbursements are entirely distinct.

The Code does not take away the right of the sheriff to double costs, but we claim it does take away his right to double disbursements, if he ever had any such right before. The Code regulates the amount of the sheriff's costs, but leaves that amount to be doubled when they are fixed.

II. Unless there is some statute clearly authorizing it, the sheriff should not be allowed double disbursements.

There is no reason why the sheriff should collect fifteen dollars for every ten dollars he pays out; nor why, when he pays the clerk one dollar for entering a judgment, he should collect of the other party one dollar and fifty cents for the same thing.

It is offering the sheriff a large premium to make large disbursements.

III. The adjusting of the costs should be sustained.

A. J. VANDERPOEL, for defendant.

MONELL, J. The item of ten dollars term fee for December term, was properly allowed. The fee is given for each term not exceeding five, at which the cause is necessarily on the calendar and is not tried, or is postponed by order of the court. Any postponement of a trial can only be by the order of the court, either upon its own motion, or on motion of one party, or by the consent of both. On the consent of the parties in writing, or in open court, an order must be made postponing the trial. This is usually done informally. Nevertheless it is sufficiently clear, and by order of the court. To avoid the costs against the party ultimately losing, a provision to that effect should be inserted in the order for postponement. If it is not, the term fee will be properly taxable.

Chapman agt. The Union Bank.

I find two cases in this court, decided at special term, where double disbursements have been allowed to a sheriff succeeding on the trial, and although the question of the right to double costs was not directly passed upon, yet the question was involved in each of these cases, and I am inclined to follow them in this case, without committing myself herein to any opinion, should the question ever come before me at the general term.

There must be a re-taxation, with instructions to the clerk to allow double disbursements.

NEW YORK COMMON PLEAS.

GEORGE H. CHAPMAN and others agt. THE UNION BANK.

Where a note payable at the "Bank of Kent, Kent, N. Y.," was deposited with the Union Bank, N. Y., for collection, without any other direction as to the post office address of the Bank of Kent, the Union Bank was authorized to send the note to the address designated in the note, and was exonerated from liability, on its failure to reach the Bank of Kent.

General Term, May, 1864.

Before DALY, F. J., BRADY and CARDOZO, Judges.

By the court, CARDOZO, J. It is very clear that if the plaintiffs on depositing the note in question, with the Union Bank for collection, had directed them to transmit it to the Bank of Kent, addressed to the "Bank of Kent, Kent, N. Y.," and that direction had been followed, the defendant would not have been liable if the note failed to reach its destination. The order of the plaintiffs would have been obeyed, and if they erred, they must bear the consequences of the blunder. In this case they did what was equivalent to that. They deposited with the defendant for collection, a note, which on its face contained a notice that it was payable at the "Bank of Kent, Kent, N. Y." It is not pretended that the plaintiffs advised the defendant that Kent was not the post office address of the Bank of Kent, nor that any instruction, except what might be fairly inferred from the address con

Chapman agt. The Union Bank.

tained in the bdby of the note, was given by the plaintiffs to the defendant. I think, therefore, that the defendant was clearly authorized to adopt the address designated in the body of the note. Had any other been employed, and the note had miscarried, the plaintiffs might justly have charged that the defendant was guilty of negligence in not adopting the address furnished by the instrument itself. It is a mistake to suppose that the evidence shows that the New York State Bank (the correspondent of the defendant) knew that letters sent to Kent would not reach the Bank of Kent. It is true, that the habit of the New York State Bank, although it had had but little dealing-not oftener than once or twice a year-with the Bank of Kent, had been to direct its communications to George Ludington, cashier, Ludingtonville, New York, but there is nothing to show that it knew or believed that a communication addressed to the bank of Kent, at Kent, would not go quite as safely as if addressed the other way. I think the justice must have found that the envelope containing the note in question, was addressed to "Bank of Kent, Kent, N. Y." Mr. King, the corresponding clerk of the New York State Bank, swears that he received the note and entered it in the books of the New York State Bank; that it was indorsed over to the cashier of the Bank of Kent, and with a letter to said cashier, was put in an envelope addressed, "Bank of Kent, Kent, N. Y.,” and mailed. If this be so, the defendant and its correspondent performed their whole duty. I am aware that the cashier says that the envelope was addressed "Bank of Kent, George Ludington, cashier, Kent, N. Y.," but without examining whether the insertion of the words "George Ludinginton, cashier," would affect the question, it seems to me that in favor of sustaining the judgment, we should presume that the justice regarded Mr. King's version of the address as correct. This is the only question in the case worthy of remark.

The judgment should be affirmed, with costs.