Majority
p. 478KAHN v. COEN. N. Y. Common Pleas, Special Term; May, 1894.
Headnote
1. Costs; term fees.] Term fees are allowable for terms during which the cause is on the general calendar awaiting trial in the usual course.2. The same.} For the purpose of taxing costs, a cause is “ necessarily ” upon the calendar when regularly and properly placed there.
Motion by plaintiff for the re-taxation of costs allow.ng defendant five term fees.
The action was brought by Rosa M. Kahn against Howes Coen, and issue joined Feb. 16, 1893. Plaintiff filed a note of issue for the March term of 1893, and served ■ defendants with notice of trial. The case remained on thé general calendar during the terms of March, April, May, June, October and November, and upon December 13, 1893, it appeared on the day calendar. By consent the case was continued from time to time until April 3, 1894, when it was tried, and a verdict rendered for •defendant.
L. B. Bunnell, for the motion.
Coggill & Smith, opposed.
The clerk properly allowed the item for term fees, it appearing that the cause was “ necessarily ” upon the calendar during the period in question within the definition found" in Sipperly v. Warner ( 9 How. Pr. 332 ), and the requirements of practice as to service, of notice were complied with (See Gowing v. Levy, 22 Civ. Pro. R. 10). I find no reason for a departure from the rule, which obtains in this city, that term fees for terms during which a cause is upon the general calendar, awaiting trial in the usual course, may be taxed by the successful party (Code
p. 479
Civ. Pro., § 3251, subd. 3; Simpson v. Rowan, 13 Civ. Pro. R. 206; II Rumsey's Practice, p. 509).
Motion denied.
Cases cited
- Sipperly v. Warner 9 How. Pr. 332 p. 478