Wessels v. Carr — 22 Abb. N. Cas. 464

Majority

p. 464

WESSELS v. CARR.

N. Y. City Court, Special Term ;

April, 1889.

Headnote

1. Costs; taxation; inquest.] An inquest taken upon a defendant’s default, is a trial within Code Civ. Pro. § 8251, subd. 3,—allowing a trial fee of thirty dollars to either party upon the trial of an issue of fact.

2. Same.] The trial after opening an inquest is not a new trial within the meaning of Code Civ. Pro. § 3251, subd. 3, allowing costs for proceedings after granting a new trial.^[1]

Motion for retaxation of 'costs.

This action was brought by Edward J. Wessels against Alfred Carr, and the defendant, being twice in default, inquests were taken each time and judgments for the plaintiff were entered.

The defendant opened the defaults both times upon payment of terms imposed

The plaintiff upon the trial recovered a judgment, and taxed $30, as a trial fee for each inquest had upon the defaults. .

p. 465

The defendant now moved for a relaxation by striking out the item of $60, entered as two trial fees upon the inquests; and also the items entered for proceedings after setting aside the inquests.

Wm. Sulzer, for the defendant,

Douglas <& Minton, for the plaintiff.

Every inquest taken in a cause is a trial, for which a trial fee may be taxed. The sum paid for the privilege of opening the inquest is in the nature of a penalty imposed, and does not interfere with the taxation of costs to the party ultimately successful (Cohn v. Husson, 3 How. Pr. N. S. 130). But the amount taxable for proceedings, after granting of anew trial, can scarcely be made applicable to the case of setting aside an inquest. The clerk’s taxation will, therefore, be affirmed, except as to the item of fifty dollars for proceedings before and after granting two new trials, which item will be disallowed.