p. 446Special Term, November, 1865.Only five term-fees can be allowed, even where after they had accrued a new trial became necessary, and the cause was again on the calendar.
Where after trial the jury are discharged without rendering a verdict, and the cause is set down for another term, the second trial is not within the provisions of the Code allowing costs of subsequent proceedings before a new trial, where a new trial has been “granted.”
The cost of copies of the stenographer’s notes of the first trial, for the use of a party on a second trial, is not taxable as a disbursement.
A trial-fee is taxable whether the trial results in a verdict or not.
Where a cause is tried several times, a trial-fee for each is taxable.
Appeal from taxation of costs.
This action was by Jeremiah Gr. Hamilton against Wentworth S. Butler, to recover $550 ; and the defendant in his answer claimed $1,000 against the plaintiff.
The case was tried three times. On the first trial, after the evidence was all in, the justice discharged the jury on account of some misconduct on the part of one of the jurymen, and put the case off for the term.
On the second -trial at the next term the jury failed to agree, and were discharged.
On the third trial the jury rendered a verdict for the defend-, ant for $1,106.85, the amount claimed by him. The clerk having adjusted the costs, the defendant appealed to the court. The items in question are stated in the following points.
Ira D. Warren, for the defendant.
I. The clerk disallowed the $10 costs of the June term. The case was first tried in May, previous to which it had been on the calendar for five terms. After the trial in May, the justice holding the trial-
p. 447term set the case down for trial again in June. The case was necessarily on the day calendar for June term, and was not reached, and we therefore claim the term-fee of ten dollars for June.N. The second item the clerk disallowed was $25 for all proceedings after notice and before the second trial; and also after the second and before the third.Section 307 of the Code provides, “ to either party where a new trial shall be had, for all proceedings before such new trial, &e., $25.”The Code defines a trial to be “ a judicial examination of the issues between the parties.” (Code, § 252.)It is a new trial therefore every time it is “judicially examined,” which was three times in this case, and we therefore claim $25 for the second and third trials.III. The clerk disallowed any trial-fee except the last. The Code provides, section 307, “ for every trial of an issue of fact, $30.” Section 252 defines a trial to be “a judicial examination of the issues between the parties.”Therefore we say every time there is such a “judicial examination” it is a trial, and we are entitled to a trial-fee. (Code, 1860, 434, subd. 4, and cases; 4 Duer, 641 ; 4 How. Pr., 465 . 8 Ib., 1, is a case in point; 2 Tillinghast's Pr., 610; 6 How. Pr., 465 .)IT. On the second trial the cause occupied three days; also on third trial; which, under section 307 of the Code, subdivision 4, entitled the defendant to $10 additional on each trial. This the clerk has disallowed, on the ground that there was but one trial.V. We claim that we are .entitled to the $13.50 and the $15 for copies of the reporter’s notes of the evidence on the first and second trials.The affidavits show that they were necessary and material in trying the cause the second and third time.YI. We claim that the clerk erred in striking out the items in the bill of costs, and that the defendant is entitled to,1st. The $10 for June term;2d. A trial-fee on each of the trials ;3d. The subsequent proceedings before trial on each of the trials, either $25 or $15 ;
p. 4484th. To $10 extra on each trial, it occupying more than two days;5th. To the items of disbursements for reporter’s notes.Wm. H. Anthon, for the plaintiff.
This action has been three times tried. On the first trial the jury were discharged after all the evidence was admitted, on account of the misconduct of one of their number. On the second the jury disagreed. On the third they found, a verdict for the defendant.
I do not find any provision of law for over five term-fees in any action. (Code, § 307, subd. 7.) The item in the defendant’s bill of costs for an extra term-fee after the cause had been once Med was properly disallowed.
The provision of the (Code, § 307, subd. 4) for all proceedings before a new trial, only applies to cases where a new trial has been “ granted,” not to those where a trial has never been completed; both items in such bill, of costs of proceedings before a new trial, were properly disallowed.
The copies of the notes taken by the stenographer ón the first two trials, although very useful, were not necessaiy disbursements under the 311th section of the Code. Any other notes would have answered the same purpose, and compensation to a private stenographer could- not have been a necessary disbursement ; even the cost of a copy for a judge is made the subject of a special provision. (Code, § 257.) The charge for such copies was therefore properly disallowed.
The Code defines a trial .to-be “ a judicial examination of the issues between the parties.” A trial without a verdict is still a trial, and the labor of counsel is equally great whether the jury agree or not. The opinion of Justice Harris in Ellsworth a. Gooding ( 4 How. Pr., 4 ) seems to be very appropriate. Strictly speaking, when a new trial has been granted, the first trial is a nullity, and yet no special provision is made by law for a second trial-fee, although there is one for proceedings anew before such second trial. It may not, perhaps, be a matter of practical consequence to a counsel, as the court would give compensation by an extra allowance in case a cause was tried more than once, as a difficult and extraordinary one, and of course if
p. 449included in the adjustment of the costs, the court would give so much less compensation as an extra allowance. I think the items of $30 for trial-fees on the first and second, as well as the third trial, should have been allowed, and the bill of costs as adjusted must be reformed in that respect, arid such charges allowed.