
    James H. Van Gelder, App’lt, v. Prentiss W. Hallenbeck, as Sheriff, etc., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 24, 1888.)
    1. Costs—When defendant entitled to double costs under Code Crv. Pro., § 8268.
    In this action the plaintiff claimed that on an execution against him the defendant, as sheriff, had collected more than sufficient to satisfy the execution, and had neglected and refused to pay the surplus to the plaintiff,, and he sued to recover such surplus. The complaint was dismissed. Held. that the case came within the provisions of Code Civil Procedure, section 8258; that the plaintiff claimed to be injured by the official act or omission to act of the officer, and was éntitled to double costs.
    2. Same—Disbursements for printing papers—Regular price allowed.
    Where the expense of printing papers is charged in the bill of costs at what is shown to be the regular price, and there is no reason to think that there is fraud or collusion in the amount charged, it is proper to allow the expense of printing as charged.
    3. Same—Practice on taxing costs—Judge’s certificate cannot be CORRECTED ON A MOTION FOR RETAXATION.
    The clerk, in taxing costs, cannot disregard the certificate of the trial judge allowing double costs. If incorrect, it should be corrected by a motion for that purpose, not by a motion for a retaxation.
    4 Practice—Stay—Motion for re-argument does not stay proceedings.
    The general term granted the defendant a new trial in this case, the plaintiff moved for a re-argument, which was granted, but such re-argument did not change the former decision of the general term Held, that the proceedings of the plaintiff upon his motion for re-argument in the absence of a stay did not stand in the way of the defendant’s right to avail himself of the order for a new trial if he desires to do so.
    5. Costs—Trial fee, etc.—What a trial within Code Crv. Pro., § 3251, subd. 3.
    The defendant regularly noticed the action for trial, while the motion for a re-argument was pending, moved the case for trial when reached and took regularly a judgment dismissing the complaint. Held, that this was a trial within Code Civil Procedure, section 3251, subdivision 3; that defendant was entitled to tax a trial fee of thirty dollars and twenty-five dollars for proceedings before and after trial.
    Appeal by the plaintiff from an order of Albany county special term readjusting the defendant’s costs on a motion for retaxation of said costs.
    The following is the bill of costs as originally taxed and the memorandum of decision of Mr. Justice Mayham referred to in the opinion:
    
      
    
    
      Memorandum of Decision on Appeal From Adjustment of Cost.
    The first item of cost objected to on this motion is a trial fee for May circuit, 1888.
    The case had been appealed to the general term from a judgment in favor of the plaintiff, when the judgment was reversed and a new trial ordered, and the defendant thereupon noticed the action for trial at Greene circuit in May, 1888. Pending that circuit the plaintiff had appealed to the general term for reargument, and the trial was temporarily delayed by the court (no order for stay having been obtained) until the decision of that motion. On the denial of said motion, during said circuit, the defendant moved the case for trial in its regular order upon the calendar, and the plaintiff failing to appear, the complaint was dismissed.
    The defendant insists that that was a trial within the provisions of section 3251, sub. 3, for which either party succeeding is entitled to a trial fee of $30.
    The plaintiff’s contention is that he did not and could not reasonably have been expected to take new trial, as the general term decision was conclusive against him, and that he contemplated discontinuance if he failed to obtain re-argument, and that he had with his motion papers given a stipulation to that effect.
    I do not see how the proceedings of the plaintiff upon his motion for reargument in the absence of a stay, could stand in the way of the defendant’s right to avail himself of the order for a new trial, if he desired to do so; and as he had regularly noticed the action for trial, he was entitled to move the case when reached, and take such judgment as he was entitled to in the usual and orderly conduct of a case. Nor do I perceive any other method open to the defendant, if he desired to dispose of the case, except to move the trial as he did in this instance.
    Was not that a trial? It seems to me that it was a judicial determination of the issue involved in the action, and hence a trial within the provision of sub. 3 of section 3251 of the Code, and that the taxation of a trial fee of $30 is proper.
    If I am right in this conclusion it would seem to follow that the item of twenty-five dollars is correct for all proceedings after granting and before the new trial. That item is allowed where a new trial is had. Sub. 3 of sec. 3251.
    The item of ten dollars for the term fee for May general term, 1887, should be disallowed and deducted from this bifi.
    
      It is shown by the papers on this motion that the case was not at that time printed or ready for argument, and the practice of putting cases on the calendar when they are not ready for trial or argument should not be encouraged by the court, nor is that practice justified'by the provisions of sub. 4 of section 3251 of the Code.
    The language is, “ And for each general term not exceeding five at which the case is necessarily on the calendar,” etc. It cannot be said that a case is necessarily on the calendar when it is not printed, especially when put there by the party whose duty it is to print the case.
    The objection to the item of $8.55 interest is not well taken and is overruled; that is the interest accruing on taxed bill of costs from the time of the taxation of the same to the time of their incorporation in this judgment.
    The proof is that printing can, on special agreement, be procured at Catskill for less than one dollar per page, but in the absence of a special agreement the customary price charged is one dollar per page.
    The evidence shows that the agreed price per page was one dollar, contingent on the defendant’s success on the appeal, and that one dollar is the regular rate and has been for a series of years, and always is charged unless special arrangements are made varying it. I see nothing improper in the alleged agreement, and think the defendant is bound by it to the printer ; and that it was properly taxed as a disbursement in this case.
    The small items of prospective disbursements included in the bill I do not examine, as the defendant’s attorney on this motion promised to abate all not actually incurred and paid of costs, and paid without the necessity of incurring such items.
    This action is brought against the defendant as late sheriff, and confessedly for acts done or omitted by him as a public officer, and having succeeded in his defense he is entitled to have allowed in this bill the extra costs provided for in section 3258 of the Code of Civil Procedure.
    Let the taxed bill of costs in this action be modified by deducting therefrom, or striking out of the same, the item of $10, term fee for May, 1887, and with that modification or deduction let the taxation of said bill as taxed" by the clerk be affirmed, with no cost of this motion allowed to-either party as against the other.
    S. L. MAYHEM,
    
      Justice Supreme Court.
    
    
      James H. Van Gelder in person for appl’t; James B. Olney, for resp’t.
   Per Curiam.

1. The small mistake as to computation of extra allowance is a matter not presented to the court and therefore not to be considered here.

2. The items of thirty dollars trial fee, and twenty-five dollars for proceedings before and after trial, were properly allowed. As is stated by Justice Mayecam, the proceedings of the plaintiff on the motion for a re-argument did not stand in the way of defendant’s right to avail himself of the order for a new trial. He had noticed the cause for trial, and was entitled to move it when reached. And as a new trial had been granted by the general term, defendant had a right to proceed with the cause. The cause was not discontinued, but the complaint was dismissed at the circuit.

3. Term fee February 188J, 1888. The cause was on the circuit calendar; and we see no reason why the amount should not be allowed.

4. There is a small item of eight dollars and fifty-five cents which arises in this way. On the trial of this action the referee found in defendant’s favor on the first cause, and in plaintiff’s favor $123.03 on the second. Defendant taxed his costs on the first cause at $128.19; plaintiff his on the second at $152.19. Plaintiff’s costs were offset against defendants to their extent and judgment entered accordingly. Defendant appealed, and judgment was reversed. Now as the first cause was disposed of on the first trial in defendant’s favor, and his costs adjusted at a definite sum, it seems right that on the final judgment that sum should carry interest; otherwise the defendant would suffer by reason of his appeal.

5. The expenses of printing papers. This is charged at what is shown to be the regular price; the same price which the affidavit states to have been charged by the plaintiff himself in several tax bills, in litigations connected with the present action. There is no reason to think that there is fraud or collusion in the amount charged, and we think it was properly allowed.

6. The question of “double ” costs. This is really not before us. The clerk had on the taxation the proper certificate of the justice who tried the case. And the clerk could not disregard that. If that certificate was incorrect, it should have been corrected by motion for that purpose; not by a motion for a retaxation. Because the clerk’s action on the certificate was proper.

But if this question were properly before us, we should think that the certificate was correct.

The plaintiff claimed that on an execution against him, the defendant had collected more than sufficient to satisfy the execution, and had neglected and refused to pay the surplus to the plaintiff. And he sued to recover such surplus. That is the plaintiff charged the sheriff with taking from him more property then he lawfully might by virtue of his process. This, we think, comes within section 3258. The plaintiff claimed to be injured by the official act or the omission to act of the officer. Conner v. Keese, 38 Hun, 124.

These are the particulars in which the plaintiff complains of the order appealed from.

The order is affirmed, with ten dollars costs and printing disbursements.  