New York County NyArchives Court.....Bick, Gerhard Vs. Henry Bick 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

GERHARD H. BICK, as Administrator, etc., of HENRY BICK, Deceased, Appellant, v. 
CATHARINE REESE, Respondent.

Surety company — the amount paid to it for furnishing a statutory undertaking is 
not a taxable disbursement.

The amount paid to a surety company which, pursuant to chapter 486 of the Laws 
of 1881 and section 811 of the Code of Civil Procedure, furnishes the requisite 
statutory undertaking given by the plaintiff in order to replevy certain 
chattels, in an action in which the plaintiff finally succeeds, is not properly 
inserted, as an item of disbursement in the action, in the plaintiff's bill of 
costs submitted to the clerk for taxation therein.

Appeal by the plaintiff from an order of the Special Term of the Supreme Court, 
entered in the office of the clerk of the county of New York on April 27, 1888, 
which affirmed the clerk's taxation of plaintiff's costs in disallowing the item 
of $125 paid the American Surety Company, which had executed the undertaking on 
behalf of the plaintiff, in an action in which certain chattels had been 
replevied by him.

D. M. Porter, for the appellant. 

Jonathan Marshall, for the respondent. 

Bartlett, J.:

This suit was brought to recover from the defendant certain chattels in her 
possession, to which she claimed title as gifts causa mortis from the 
plaintiff's intestate. In order to replevy the chattels the plaintiff procured 
the American Surety Company to furnish the requisite statutory undertaking, and 
for this service paid that corporation $125. The plaintiff succeeded in the 
action, and, in his bill of costs, inserted this amount as one of the necessary 
disbursements which he had made in the case. The clerk refused to tax it, and 
his refusal has been sustained by the court at Special Term.

We think the clerk and the court below were clearly right in disallowing the 
item. The undertaking in replevin was given by the American Surety Company 
pursuant to chapter 486 of the Laws of 1881, and chapter 416 of the Laws of 
1886, which latter act amends section 811 of the Code of Civil Procedure. In 
neither of these statutes is anything to be found which indicates an intention 
on the part of the legislature to prefer fidelity or surety companies over 
private persons who act as sureties. It cannot be inferred that there was any 
design to place such corporations in any more favorable position under the law 
than that which would be occupied by individuals who executed similar 
instruments. It would seem plain, therefore, that no payment to a corporation 
for acting as a surety can properly be taxed as a disbursement in an action 
unless a similar payment, if made to a person for acting as such surety, could 
properly be taxed. But it has never been supposed or even suggested in any case, 
so far as we are aware, that the expense of procuring an individual to become a 
surety on a bond or undertaking, was taxable as a part of the necessary 
disbursements in an action. Whenever such expenditures are requisite, they must 
be borne by the party who finds it necessary to incur them. There is no practice 
or provision of law which authorizes the court to impose them upon the adverse 
party. The fact that the legislature has authorized surety companies to execute 
bonds and undertakings as a matter of business, and, therefore, presumably for 
gain, constitutes no reason why any distinction should be made in favor of 
litigants who avail themselves of the services of such corporations. The intent 
of the laws on the subject seems to be simply to permit these companies to do 
what formerly could be done only by individuals; but not to place them in a 
position which will induce litigants to have recourse to them rather than to 
private persons, as would be the case if compensation paid to such companies for 
acting as surety could be recovered as part of the costs in a suit, while 
similar compensation paid to private persons is not recoverable. In order to 
justify the clerk in disallowing the item in question, it was not necessary that 
the defendant should present any affidavit disputing the facts set out in the 
affidavit of the plaintiff's attorney, for it sufficiently appeared by this 
affidavit, that the disbursement was one which could not properly be taxed, even 
assuming that the expenditure which it represented was in all respects rightful 
as between the plaintiff and the estate of which he is the administrator.

The order appealed from should be affirmed, with ten dollars costs and 
disbursements.

Van Brunt, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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