Tillspaugh v. Dick

| N.Y. Sup. Ct. | Mar 15, 1853

Parker, Justice.

The dismissal of the complaint was a judg ment in favor of the defendant and entitled him to recover whatever items of costs are given by the Code for services ren dered. The first item of $5, for proceedings before notice of trial was properly allowed. The charge of $7, was improperly allowed. That is only chargeable for services rendered after notice of trial and before trial, and as to this defendant, the cause had never been noticed for trial. For the same reason the circuit fee of $10 was not chargeable. The cause had been put on the calendar on the notice of anothér defendant. It was never on the calendar as between these parties.

The only objection to the allowance of the charge of $10 on the motion to dismiss the complaint, is that the amount of costs is not specified in the rule dismissing the complaint. But the omission was undoubtedly clerical, as the order was granted “ with costs.” I shall, therefore, allow an amendment by inserting the words “ ten dollars,” so that it will read “ with ten dollars costs.” It was claimed that $12 should have been allowed as a trial fee on the dismissal of the complaint. But there was no trial. A trial is the judicial examination of the issues between the parties (Code, §252). Here was no examination whatever of the issues, but the bill was dismissed merely because the plaintiff had neglected to bring the issues to trial. It is otherwise where the plaintiff applies for judgment on the ground of the frivolousness of a demurrer, answer or reply (Code, §247; 7 How. Pr. R. 396). In the latter case, there is necessarily a judicial examination .of the issues.

There being no trial, the clerk was not entitled to the charge of $1, nor to any charge for entering the order. But he had a right to charge for the copy of the order at five cents per folio, and fifty cents for entering'judgment.

There must be a readjustment of the costs according to the directions above given, neither narty to have costs of this motion.