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Herman v. Lyons.

derived from the improvement, and that it is to be inferred that the assessors assumed in making the apportionment that the relator owned the said land in fee.

*

It is possible that the assessors may have misapprehended this question of title in making the assessment. I, however, abstain from considering that question, having arrived at the conclusion that the apportionment is erroneous, for the reason above discussed. The apportionment must be vacated.

HERMAN v. LYONS.

N. Y. Supreme Court, First Department; General Term, March, 1877.

COSTS. OFFER OF JUDGMENT.

An offer by defendant to allow a judgment to be taken against him, made within ten days before the cause is reached in its regular order on the calendar, can be treated as a nullity by the plaintiff, and he can proceed with his action, and full costs will be allowed, as if no offer had been made.

A defendant cannot prevent plaintiff from recovering costs of trial, by serving an offer, within ten days before trial, to allow judgment for the full amount claimed, with costs.

Appeal by defendant from an order confirming adjustment of costs.

This action was brought by Abraham S. Herman against Herman Lyons.

The cause was on the general calendar, and noticed for trial for the February term, and on motion it was placed on the special circuit calendar. On February 8, plaintiff's attorney received by mail from defendant's attorney an offer of defendant, dated February

* Compare People ex rel. Howlett v. Mayor, &c., of Syracuse, 63 N. Y. 291, rev'g 2 Hun, 433; S. C., 5 Sup'm. Ct. (T. & C.) 61.

Flood v. Moore.

7, to allow judgment to be taken against him for a specified sum, viz., the amount claimed in the complaint, with costs.

On the next day after the receipt of the offer, the trial came on regularly; the cause was regularly called in its order; and no one appearing for defendant, an inquest was taken by plaintiff's attorney, and a verdict rendered for the plaintiff for the same amount as offered. Plaintiff then had his costs taxed, including costs of trial, and defendant thereupon moved to strike out the costs of trial which were incurred after the offer.

DAVIS, P. J., denied the motion, holding that the "adjustment was correct. The trial came on regularly in less than ten days after service of the offer. Plaintiff was not to be deprived of his trial and costs thereof by reason of the offer in the manner and at the time it was done in this case."

"Adjustment affirmed, with $10 costs."

From the order entered defendant appealed.
William Riley, for appellant.

Simon H. Stern, for respondent, to show that an offer of judgment, to be effectual, should be served more than ten days before the trial, cited: Pomeroy v. Hulin, 7 How. Pr. 161; Walker v. Johnson, 8 Id. 240; Code, § 385, note; Wait's Annotated Code, 733).

THE COURT held as stated in the head-note.
Order affirmed, with costs and disbursements.

FLOOD v. MOORE.

N. Y. Supreme Court, Third Department; Special Term, February, 1877.

COSTS.-DISBURSEMENTS.

The expense of a copy of the stenographer's minutes of a former trial,

Flood v. Moore.

obtained for use on a second trial of the same action, is taxable as a disbursement as part of the costs of the prevailing party.

Motion by plaintiff for adjustment of costs.

This was an action by Catharine Flood, as administratrix, against David Moore.

On the first trial of the action the jury did not agree. The attorneys for plaintiff procured from the stenographer a copy of his minutes of the evidence to use on the second trial, and it was so used; and the attorneys showed by affidavit that it was procured in good faith for that purpose.

On the second trial, the plaintiff recovered judgment, and the charge paid the stenographer was included in the plaintiff's costs. This item was disallowed on the adjustment of costs by the clerk, and the plaintiff appealed.

Amasa J. Parker, Jr., for motion.

Grenville Tremain, opposed.

WESTBROOK, J.-I was at first inclined to hold that the copy notes should not be allowed as a disbursement. On further reflection, however, I think they should be allowed. Suppose witnesses had been subpœnaed to prove what certain other witnesses swore to on a former trial, and the attorney on taxation testified that they were subpoenaed in good faith because he believed they might be necessary, would they not have been allowed? This motion turns on the same ground.

In anticipation of what might occur on a second trial, the notes were procured. The attorney testifies to the good faith of the procurement, and I think the disbursement is fairly within the letter of the Code. No costs on motion.

Richards v. Richards.

RICHARDS v. RICHARDS.

N. Y. Supreme Court, First Department; Chambers, November, 1875.

PARTITION.-REFEREE'S FEES AND COMMISSIONS.

A referee appointed to sell land decreed to be partitioned, is entitled to receive the same commissions on the price received for the land sold, as an executor would be.*

Motion to confirm report of referee appointed to ascertain the fees of a referee appointed to sell land decreed to be partitioned.

This action was brought by Robert G. Richards, against Pierre T. C. Richards and others, for the partition of certain real estate in the city of New York, consisting of two houses and lots.

By the final decree for partition, Bradbury C. Chetwood, Esq., was appointed referee to sell. He accordingly sold the property in February, 1875, and obtained for one house and lot $11,600, and for the other $9,000. The deed was to be given on March 13, 1875, and was tendered to the purchaser on that day, but owing to some other litigation between the parties, the day for closing the title was adjourned several times until April 26, when, the parties having attended for that purpose, the referee demanded his fees, which were refused on the ground that they were too large. The referee then gave notice of an application to have his fees taxed at $606. Upon the hearing of the motion for that purpose, George W. Wingate, Esq., was appointed a referee to ascertain the amount due. On November 9, 1875, he made the following report:

The question in this case is whether there is any

* Followed in the next case.

Richards. Richards.

statute fixing the fees of referees in partition, and if so, at what rate the same should be computed. Chapter 569, Laws 1869, vol. 2, p. 1377, was passed for the purpose of settling questions of this description.

It is entitled "An act in relation to the fees of the sheriff of the city and county of New York, and to the fees of referees in sales in partition cases," and enacts:

1. That all sales in New York under judgments or decrees, except in cases of partition, &c., shall be made solely by the sheriff.

2. In cases of sales on foreclosure the sheriff shall receive the following fees:

For receiving order and posting notice of

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3. That commitments by police justices should be directed to the sheriff.

4. That in case of sales in actions in partition by referees, they shall receive the same fees and disbursements as are allowed by section 2, to the sheriff, and in addition a commission on all moneys received and paid out by them at the same rate as executors, such commission not to exceed $500.

This act was held unconstitutional, upon the ground that the two subjects of the fees of sheriff and of referees, provided for in sections 2 and 4, were alone referred to in the title; the subjects of the exclusive power of the sheriff to make sales, and of the police justices to make commitments, not being referred to therein. That the act was a local act embracing more than one subject, and that the exclusive right of the sheriff to sell was not expressed in the title, and that the act was

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