10 Abb. Pr. 313 | The Superior Court of New York City | 1860
—The motion in this case is for an allowance under section 309, upon the dismissal of the complaint by default, upon proof of service of notice of trial of issues of law, when the cause was reached in its order on the calendar. And the question whether an allowance can be made, must bear upon that other, whether such judgment by default is a “ trial” within the meaning of that section.
It is very evident that the allowance is not given as a trial-fee alone, or counsel-fee for trying the cause (McQuade a. The New York and Erie Railroad Company, 5 Duer, 616), because it is the difficult and extraordinary character of the case, not of the trial, which determines the right to the allowance; the mere trial alone forms by itself a contingency on which the right of an allowance depends, because section 322 excludes it upon a settlement before judgment, whereas, after a trial, costs follow, to be included with judgment.
The only remaining question is solved by the Code; and here I do not think the definition in section 252 is strictly applicable, as there can hardly be said to be a “judicial examination,” when the default of a party is taken; but in regard to costs and indemnity of expenses, I think the term has a wider meaning, and this being a modified continuation of a prior fee-bill, in which “ trial” included every mode of disposing of issues in a case.
In this sense it is used in section 307 of the Code, where, under subdivision 4, it has been held that the word trial, as applied to issues of fact, included judgments by default (Dodd a. Curry, 2 Code R, 69 ; S. C., 4 How. Pr. R, 13), and it certainly must include similar judgments on issues of law men-, tioned in the same subdivision, and such was the view undoubtedly taken in Lawrence a. Davis (7 How. Pr. R., 354).
I think this a proper case for an allowance of five per cent, on the amount claimed.