Wandell v. Hirschfeld

Bischoff, J. The infant’s general answer so far placed the averments of the complaint at issue as to call for proof in support of the cause of action. The inquiry which resulted was a trial, for the purpose of the provisions of the Code relative to the allowance of costs. Roosevelt v. Schermerhorn, 32 Misc. Rep. 287. And this trial, originating in the joinder of issue, was not to become less of a trial, or no trial, because of the absence of cross-examination in the infant’s behalf. A trial fee follows an inquest and does not depend upon the presence of an active controversy when the evidence in support of the case is presented to the designated tribunal. The hearing had in pursuance of the order of reference to take proof, after the service of the infant’s answer, was a trial, for the purposes of the taxation of costs, and the items in question should be taxed. Motion granted. Order may be presented on notice. Motion granted.