Lyman v. Young Men's Cosmopolitan Club & Fidelity & Deposit Co.

While it is true that the only papers which can be used on a motion for a retaxation by the clerk are those which were before the clerk, as the plaintiff in obtaining the order to show cause herein used affidavits not before the clerk, to-wit, the joint affidavit of Messrs. Page and Sanford and the affidavit of Mr. Scott, each dated December 12, 1898, in which the ground on which the clerk adjusted the costs is stated, I think that the *411defendants were entitled to read affidavits in reply. If this view, however, is erroneous there is enough before the court to show that the clerk’s adjustment was correct, and the taxation in these cases should be affirmed on the merits, and the motion for a retaxation should be denied with $10 costs to the defendants, in each case. (See Comly v. The Mayor, etc., 1 Civil Pro. Rep. 317, per Barrett, J.)

Settle the order on one day’s notice.