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Crofts agt. Rockefeller and others.

Henry Miller, Esq. for the two other defendants. Dewitt Miller, Esq. and Henry Miller, Esq. were copartners in the practice of the law. On trial at the circuit a verdict and judgment were given for the defendants. Two separate bills of costs were claimed by defendants' attorneys. The bill of Dewitt Miller, for defendant Rockefeller, was taxed at $97:75, and subsequently paid. The bill of Henry Miller, was afterwards allowed on adjustment by the clerk, at $24. All the items in the last bill were for services of attorney and counsel. The plaintiff appealed from the taxation of the last bill. The question presented on taxation and on appeal was, whether, the attorneys being partners, the fendants were entitled to separate bills of costs.

R. McCLELLAN, for Plaintiff.

K. MILLER, for Defendant. PARKER, Justice.- Under the late practice, it was well settled that where the attorneys who appeared for different defendants, were partners, they could tax on recovery against the opposite party, but one bill of costs. With reference to costs, a firm consisting of two or more attorneys, was regarded as one attorney. It is claimed by the defendants' counsel that the rule ought to be otherwise now, in as much as costs are declared to belong to the party (Code, § 303). But costs always belonged to the successful party, and not to his attorney; though the bill of costs recovered may not be now, as it was formerly, the measure of compensation between the party and his attorney.

In Tracy vs. Stone (5 How. Pr. R. 104), it was decided that where two defendants defend by the same attorney and answer separately, and verdict and judgment are given in their favor, but one bill of costs could be allowed. There is no difference between defending by the same attorney and defending by different attorneys who are partners. In Collomb vs. Caldwell (5 How. Pr. R. 336), relied on by the defendants' counsel, the defendants defended separately, and separate bills of costs were allowed. I have no doubt that was a case where the attorneys defending were not partners, though nothing is said as to that fact by the

Sprong agt. Snyder.

reporter. It will not be denied but separate bills of costs may be recovered where separate attorneys, not connected in business, are employed. Such was the late practice (Ten Broeck vs. Paige, 6 Hill, 267).

There is nothing in the Code that requires a change of the practice as laid down in the case last cited. Nor is there any reason why successful defendants should recover, where they employ two attorneys in partnership, more costs than where they employ a single attorney to defend. The services rendered' are the same in both cases, and no increased compensation in the former case is called for by way of “ indemnity.”

The motion must be granted without costs of motion to either party.

SUPREME COURT.

SPRONG agt. SNYDER.

A motion for an extra allowance of costs, in cases tried by referees, may be

made at any place where, under the restrictions of ♡ 401, any other motion in the action might be made. (The case of Niver agt. Rossman, 5 How. Pr.

R. 153, not concurred in.) An extra allowance can not be had in an action brought to restrain the fore

closure of a mortgage. It is not a case within 9 309.

Albany Special Term, March 1851. Motion for extra allowance. The action was brought to restrain the foreclosure of a mortgage. The venue is in Schoharie. The cause was tried by a referee, who decided in favor of the plaintiff. The hearing and argument before the referee continued four days. The question litigated seems to have been whether the plaintiff, who was a purchaser of the mortgaged premises, was chargeable with notice of the defendant's mortgage.

J. H. Ramsay, for Plaintiff.

THOMAS Smith, for Defendant. Harris, Justice. There is nothing in the papers upon which this motion is founded, showing that the plaintiff is entitled to

Sprong agt. Snyder,

any costs at all, but as it seems to have been assumed by both parties, that the plaintiff is entitled to costs, I infer that the referee in deciding the case in favor of the plaintiff awarded him costs. I shall, therefore, assume that the question of an extra allowance is properly before me.

The defendant's counsel insists that the motion should have been made in Schoharie, and relies upon the case of Niver agt. Rossman (5 Howard, 153), as an authority supporting his position. It is true that the learned judge, whose decision is referred to, seems to think that the terms of the 86th rule requires the application, in a case like this, to be made in the county where the trial has been had. In this conclusion I can not concur. I do not understand the rule mentioned as having any application whatever to cases of this description. The learned judge, whose opinion is cited, himself admits that it was not intended to make the rule applicable to such cases, and yet he thinks it has been so expressed as to require that it should be so applied; I am unable to perceive this necessity. Where“ a trial is had,the rule confines the application for an additional allowance to "the court before which such trial is had.” This clearly presupposes that there has not only been a trial, but that it has been had before some court. This branch of the rule can only be applicable to such a case. Of course, it can not be applicable to a trial before a referee, for such a trial, although it is declared that the decision shall stand as the decision of the court, certainly is not, within the ineaning of the rule, a trial before a court. If it were, it would be necessary to make the application to the referree before whom the trial was had. One other class of cases is provided for, in the last clause of the rule. These cases are such as, though not tried upon any issue of law or of fact, are heard by the court at the circuit or special term, and judgment rendered therein upon such hearing. It is to this class of cases that the second paragraph in the 308th section of the Code refers. In these cases, the rule declares that the application for an additional allowance shall be made to the court“ before which the judgment is rendered.” If the Code permits an addi

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Hornfeger and others agt. Hornfager.

tional allowance to be made in any other case, the mode of such application is not prescribed by the rule. What court is it that renders judgment upon the decision of a referee ? I understand it to be the Supreme Court-not the Supreme Court of Schoharie, or of Albany—but of the state of New York. If this be so, the motion for an allowance may be made at any place where, under the restrictions of the 401st section of the Code, any other motion in the same action might be made. I think, therefore, that the motion is properly made in Albany.

But there is another difficulty in the plaintiff's way, which seems to me to be fatal to his motion. The action is not brought for the recovery of money or property-neither is it brought for any of the purposes specified in the second clause of the 308th section of the Code. The action is brought for the sole purpose of restraining the collection of a mortgage. The plaintiff has succeeded, but the judgment he has recovered is not within the enumeration of cases contained in the 309th section of the Code, prescribing the rates at which the additional allowance, when made, shall be estimated. I can not see that the court has any power to make an additional allowance in such an action. For this reason the motion must be denied, but without costs.

SUPREME COURT.

HORNFAGER and others agt. HORNFAGER and HORNFAGER.

The Same agt. HORNFAGER AND OTHERS. An amended complaint alleging matters which occurred subsequent to the ser

vice of the original, is irregular, and may be set aside on motion; or the new

subsequent matter may be stricken out. It seems, that but one set of papers, one rule and the costs of one motion only,

will be allowed in two causes, where the object of the motions are alike in both, and made at the same time.

Columbia Special Term, January 1850. Motion by the defendants to set aside the amended complaint in each of these actions, on the ground that matters are alleged therein which had occurred after the service of the original complaint, or, in

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Hornfager and others agt. Hornfager.

case such amended complaints are not set aside, that the matters arising after the service of the original complaints, and inserted in the amended complaints, be stricken out. The actions are brought for the partition of lands. The original complaints were served on the defendants' attorney on the 21st of September 1850. On the 18th of December following, and after the defendants in each action had put in their answers, the plaintiffs' attorney served amended complaints in each action, stating among other things, by way of amendment, that “one of the plaintiffs, Wm. C. Hornfager, on or about the 28th day of October 1850, conveyed by deed, to one Jonathan S. Ely, all his right, title and interest in the premises described in the complaint, and that by virtue of such conveyance the said Jonathan S. Ely became entitled to one equal undivided fourth part of the premises. Ely was not made a party to the actions.

H. HOGEBOOM, for Plaintiffs.

J. C Newkirk, for Defendants. Harris, Justice.-Amendments to a pleading can only relate, properly, to the time when the original pleading was made, and can only state facts in existence at that time. To introduce matters occurring at a subsequent date, would render the record incongruous. Such matters should be brought before the court by a supplemental pleading (1 Barb. Ch Pr. 207; 2 do. 6:3, 64). In this case the interest of the plaintiff William C. Hornfager, having been transferred to Ely after the original complaints had been served, the remaining plaintiffs should have applied, under the 177th section of the Code, for leave to make a supplemental complaint, making Ely a plaintiff or defendant in the actions, instead of William C. Hornfager. In that case the court might, under the authority contained in the last clause of the 121st section, substitute Ely as a party in the place of his grantor. The amendments, therefore, so far at least as they seek to bring forward this new matter are clearly irregular. The amended complaints might properly be set aside, but as there may be other matters in the amendments which may properly be the subject

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