Harris v. Pudney

Hill, J. This is” a motion for taxation of costs, pursuant to section 3265 of the Code of Civil Procedure. The disputed item is a trial fee cláimed by defendant. The case was number 5 on the calendar of the December, 1915, term of this court. There were only six civil cases in all on the calendar. The facts as to the transaction at the term, as shown by the clerk’s minutes, the court’s minutes and the affidavits, are that when number 1 was called the attorney for the defendant stated there would be no appearance on behalf of the defendant, and that plaintiff could put in his proof at any time, which, in fact, was done the following afternoon. Number 2 was reserved, as it was stated that a settlement was pending; the same was stated in regard to numbers 3 and 4. Number 5, the case in question, was then called, the same was announced ready by the defendant, and the plaintiff then stated he would discontinue the case and pay costs. Number 6, which was an equity case, was then called and each party stated they would be ready when reached. In such case the judge presiding stated he was disqualified, having been attorney for one of the parties before going upon the bench. Immediately thereafter it was stated, in reference to number 3, that a default would be taken. A jury was impaneled to try a criminal case. The court then heard the proof for the default in number 3. Court then took a recess until after the lunch hour, when the trial of the criminal case was continued. The question is upon the above state of facts, whether case number 5 had progressed to that point where defendant was entitled to a trial fee. Trial is defined as the examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause for the purpose of determining such issue; the final examination and [472] decision of matter of law as well as facts for which every antecedent step is preparation. The statute governing the controversy herein is as follows: “ For the trial of an issue of fact * * * thirty dollars.” The nearest approach to a trial herein was that defendant stated ‘ ‘ That he was ready for trial,” and the plaintiff, in substance, stated that he did not wish to try such case, and that he would discontinue same and pay costs. I do not believe that the above amounts to a trial. The decisions of the General Term seem to warrant the conclusion that there was no trial in this case, so no trial fee should be taxed. Lockwood v. Salmon River Paper Co., 49 N. Y. St. Repr. 302; Studwell v. Baxter, 33 Hun, 331; Sutphen v. Lash, 10 id. 120; National Bank of Syracuse v. McKinstry, 2 id. 443. Ordered accordingly.