Hunt agt. Middlebrook and others. SUPREME COURT. JAMES J. HUNT agt. Wм. C. MIDDLEBROOK and others. By the amendment (in April, 1857,) to § 308 of the Code, no discretion or power is vested in the court concerning extra costs, or rather, the authority previously existing was thereby abrogated. As amended, the section defines the particular cases in which an additional compensation to a plaintiff recovering judgment may be allowed as costs. In such cases it is not necessary to move the court in order to obtain the extra per cent. allowed. That per cent. is prescribed as a method simply of determination of the amount of costs taxable in those cases. It is made definite and certain, and attaches as a fixed right to the plaintiff upon the recovery of judgment. It is therefore the duty of the clerk, in the adjustment of costs in such cases, under § 311, to insert in the entry of judgment such per centage, as a part of the sum of costs allowed by the Code, provided the suit was determined subsequent to the amendment, (although commenced before.) The determination of a suit, as it respects the question of costs, is the final decision authorizing a judgment. In the case of a trial by the court, it is the making and filing the decision. In the case of a referee it is the making and delivery of the report. Watertown Special Term, May, 1857. MOTION for an extra allowance of costs, or for direction to the clerk as to the adjustment. The action was for the foreclosure of a mortgage, commenced in 1854, referred the same year to a referee for hearing and decision, and heard at intervals of time in the years 1854 and 1855, and the spring of 1857. The referee made his final report in favor of the plaintiff on the 9th day of May, 1857. LEVI H. BROWN, for plaintiff. CHARLES D. WRIGHT, for defendants. HUBBARD, Justice. I am satisfied that the motion for an extra allowance of costs cannot be granted. Section 308 of the Code, which gave the allowance in actions of this description, Hunt agt. Middlebrook and others. has been materially changed by the recent amendment made by the legislature, passed April 17, 1857. By the amendment, no discretion or power was vested in the court concerning extra costs, or rather the authority previously existing was thereby abrogated. As amended, the section defines the particular cases in which an additional compensation to a plaintiff recovering judgment may be allowed as costs. Those cases are actions for the partition of real property; for the foreclosure of mortgages, or in which a warrant of attachment has been issued; construction of wills or other written instruments, and proceedings to compel the termination of claims to real property. In such cases, however, it is not necessary to move the court in order to obtain the extra per cent. allowed. That per cent. is prescribed as a method simply of determination of the amount of costs taxable in those cases. It is made definite and certain, and attaches as a fixed right to the plaintiff upon the recovery of judgment. It is, therefore, the duty of the clerk, in the adjustment of costs in such cases, under § 311, to insert in the entry of judgment such per centage as a part of the sum of costs allowed by the Code, provided the suit was determined subsequent to the amendment above referred to. The act amending the Code took effect on the 7th day of May, 1857. The report of the referee in this case was made on the 9th of the same month. In the case of The Supervisors of Onondaga agt. Briggs, (3 Denio, 173,) it was held, that when the rate of compensation. for attorneys and counsellors is changed by the legislature during the progress of a suit, the costs of such suit are to be taxed according to the statute in force at its termination. (See The People agt. The Herkimer C. P., 4 Wend. 210.) This is the settled law, founded upon the principle that costs are created by statute, and the right to them does not become fixed until the determination of the suit. That determination, as it respects the question of costs, is the final decision authorizing a judgment. In the case of a trial by the court, it is the making and filing the decision. In the case of a referee, it is the making and delivery of the re Whitford agt. Scott and Bissell. port, which stands as the decision of the court. When the report is made, the action is terminated-the right to a judgment and costs is fixed. In this case the action was not determined until two days after the recent amendment of the Code above referred to took effect. Sections 307 and 308, as thus amended, were then in force, and prescribe the costs which, upon an adjustment in an action of this description, where the plaintiff recovers judgment, the clerk should insert in the entry of judgment. SUPREME COURT. STUTLEY G. WHITFORD agt. WILLIAM SCOTT and MATTISON BISSELL. Two trustees of a school district cannot act as such in the performance of their duties, except upon a meeting of all three of the trustees, whether the third one refuses to act or not. Therefore the apportionment of a tax among the taxable inhabitants of a school district, and the issuing a warrant for its collection, by two trustees, without meeting with or consulting the third trustee, is void. (See Horton agt. Garrison, 23 Barb. 176.) And it dont help the difficulty that the third trustee will not act. If he refuses to discharge his duties as a trustee, he can be punished by indictment, and is liable to pay a penalty of $10, for each refusal to perform any duty required by law. Besides, he may be removed from office by the state superintendent of public instruction. Broome General Term, Jan., 1857. Present, GRAY, MASON and BALCOM, Justices. THIS action originated in a justice's court in Otsego county. It was brought to recover the value of a cow that belonged to the plaintiff, and which one Brooks took and sold as collector of a school district, by virtue of a warrant issued and delivered to him by the defendants, as trustees of the district, for the collection of a tax voted upon the district. Whitford agt. Scott and Bissell. The tax was apportioned, and the warrant was issued for its collection by the two defendants, as trustees of the district, without meeting with or consulting the third trustee. Brooks levied upon and sold the cow by the direction of the defendants; and they justified their acts as trustees of the district under the warrant. After the plaintiff had proved that the defendants apportioned the tax among the taxable inhabitants of the district, and issued the warrant to Brooks for its collection, without meeting with or consulting the third trustee, the defendants gave evidence which tended to establish that the third trustee had refused to act, as such, in apportioning and collecting the tax. The jury found a verdict for the defendants, on which the justice rendered a judgment against the plaintiff for costs. The Otsego county court affirmed the judgment, and the plaintiff appealed to this court. JAMES E. DEWEY & L. E. BOWE, for plaintiff. By the court-BALCOM, Justice. The return of the justice shows that the tax list and warrant, by virtue of which the plaintiff's cow was taken and sold, were made out by the two defendants without meeting with the other trustee of the district, or consulting him on the subject. It is provided by statute as follows: "Whenever any power, authority, or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done, and such power, authority, or duty may be exercised and performed by a majority of such persons or officers, upon a meeting of all the persons or officers, so entrusted or empowered, unless special provision is otherwise made." (2 R. S. 458, § 27.) It has been held that this enactment is applicable to the action of trustees of school districts in the discharge of their offi Whitford agt. Scott and Bissell. cial duties. (Lee agt. Perry, 4 Denio, 125.) The tax list and warrant are, therefore, illegal, and they did not justify the defendants in causing the seizure and sale of the plaintiff's Cow. This court has repeatedly held, in this district, that two trustees of a school district cannot act as such in the performance of their duties, except upon a meeting of all three, whether the third one refuses to act or not. Assuming that the case clearly shows that the third trustee had often declared that he would do nothing towards the apportionment or collection of the tax, for the collection of which the tax list and warrant were made out by the defendants, it does not render their acts valid, for the statute does not authorize two trustees to act at all in such a matter, except upon a meeting of all three. Special provision has been made by the legislature, authorizing two commissioners of highways to act in the execution of the powers conferred upon them, provided the third commissioner is duly notified to attend a meeting of the three, and neglects to do so, and the order that the two make states the fact that the third was duly notified to attend the meeting for the purpose of deliberating on the subject embraced in it. (1 R. S. 525, § 129; 22 Wend. 132.) But no such power has been conferred upon two trustees of a school district. It is unnecessary to the determination of this case, to state the remedy that the inhabitants of a school district have against a trustee who refuses or neglects to discharge the duties of his office; but I will do so, because there seems to be much misapprehension on the subject. A trustee of a school district, who refuses to discharge his duties as such, can be punished by indictment. § 38; 2 Hill, 196; 1 Denio, 457; 3 id. 381.) tory trustee is also liable to pay a penalty of (2 R. S. 696, Such a refrac$10 for each re fusal to perform any duty required by law; (Laws of 1847, p. 698, § 79; id. p. 713, § 145;) and he may be removed from office by the state superintendent of public instruction. (Laws of 1849, p. 537, § 15.) |