Majority
p. 416Jackson, ex dem. Hooker, against Mather.
Headnote
Ail enume[re6consMered °u .the same ease, °for the PurP°se of costs.According, attorn®y’s f®es ®re allowable for attending to argue a motion the^round of newly discovered evidence, as on a case. The motion for a new trial by reason of newly discovered evidence is an enumerated motion.
J. A. Spencer, for the defendant,
moved for a re-taxation of costs. The plaintiff made affidavits, in order to move for a new trial, on newly discovered evidence; which was noticed for several successive terms, and placed on the calendar. The motion was finally abandoned. On taxing J t ° the costs, the commissioner treated the application as a special motion within the statute, (2 E. L. 15,16,) and would not tax more than $1 25 for attorney and counsel fees in ^ ^ attending to argue.
D. B. Noxon, contra,
said the statute, (2 R. L. 15, 16,)
p. 417
giving a fee of $3 75, did not extend to a motion like tho present on affidavit. It is confined to a case, properly so called_
This is clearly an enumerated motion. The word case in the statute is not confined in meaning to a case settled by a judge. The statute doubtless refers to the distinction, well known when it passed, between calendar and other motions. We consider every enumerated motion as standing on the same footing with a case, for the purpose of costs. The words “ special motion” in the statute, apply merely to non-enumerated motions.
Motion granted.