Gallagher v. Surpless

Per Curiam: Both parties noticed the case for trial, and there were proceedings thereafter for the purposes of trial, and the case was necessarily on the calendar for five terms. A trial was not had, as the court of its own motion continued the case. Thereupon the defendants’ motion for judgment on the pleadings was granted at Special Term, and judgment had accordingly. The [794] defendants did not thereby forfeit costs that had accrued to the prevailing party. They have taxed costs before and after notice of trial, term fees and trial fee of an issue of law. The trial fee should not be taxed. The order should be modified accordingly, without costs of the appeal. Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred. Order modified by disallowing trial fee, and as so modified affirmed, without costs.