8 How. Pr. 271 | The Superior Court of New York City | 1853
The first question presented upon this taxation, is, whether the plaintiff is entitled to a fee for proceedings before notice of trial, and then if he is, whether that fee is $12 or $7. The general practice in all cases where an amendment is allowed upon payment of costs, is, that the party paying such costs shall be charged with the costs of all proceedings
In this case the plaintiff demurred. He is, of oourse, entitled to be paid for the pleading upon which he has prevailed. This' is embraced in the fee for proceedings before notice of trial. That fee is, in this case, $'Y. The action was upon contract, and for the recovery of money. Had the defendant failed to answer, judgment would have been perfected in the manner prescribed by the first sub-division of the 246th section of the Code. No application to the court would have been necessary. The criterion is not, as seems to have been held, in Lawrence agt. Davis, (7 Howard, 354,) whether the pleadings are such as to render an application to the court necessary, but it is whether the action is such that judgment, in case no defence had been interposed, might have been perfected without such application. The language of the first sub-division of the 30Yth section is too explicit to admit of question upon this point..
Costs of proceedings before notice,--------- $7 00
do do after notice,---------- 7 00
For trial of issue of law,-------------- 15 00
Disbursements,------------------- 2 00
$81 00