Ittick v. Whitney — 4 Hill & Den. 54

Majority

p. 54

Ittick and others vs. Whitney.

Headnote

tinder the act of 1840, {Sees. L. of ’40, p. 330, § 3,) an attorney fee “ for attending the trial of a cause” is taxable, though the circuit in reference to which thd charge is made was not held, by reason of the non-attendance of the judge; but otherwise as to a counsel fee.

The costs of a pending chancery proceeding cannot be taxed in a suit at law.

M. Hoffman, for the defendant,

moved for a retaxá'tibñ of costs. The action was noticed for trial at the April ’circuit. The circuit judge did not attend, and the circuit was adjourned without day pursuant to 2 R. S. 203) § 19—2Í. At a subsequent circuit the cause was tried, and the plaintiff had a verdict; He taxed attorney’s fee $3, and counsel fee $5, for attending prepared to try the cause at the circuit which fell through. He also taxed the same items, without objection, for the circuit at which the cause was tried.

Pending the suit, which was an action of ejectment, the plaintiff filed a bill in chancery, and obtained an injunction upon the defendant not to commit waste. The defendant appeared in that suit, but nothing further was done before the ejectment suit was tried and judgment perfected. The plaintiff taxed in his bill in the ejectment suit $30 for the costs of the chancery suit, which is still pending.

p. 55

L. Ford, for the plaintiffs, opposed the motion.

By the Court,

As the April circuit fell through in consequence of the non-attendance of the judge, I think the costs of that circuit stand upon the same footing as though the circuit had been held, but the cause had not been reached on the calendar. As there was no trial, the counsel fee should not have been allowed. (Schenck v. Lathrop, 3 Hill, 449 .) As an original question, I should have entertained the same opinion concerning the attorney’s fee. But as to that, there hqs been no important change in the language, of the statute. By the act of 1813, the attorney was allowed “ a fee on trial,’’ (1 R. L. 16.) By the act of 1830, the allowance was, u for attending the trial of a cause.” (2 R. S. 613, § 18.) The act of 1840 has the same words, with the exception that the word “ for” is omitted. (Stat. of 1840, p. 330.) Under the former statutes, it was the settled practice to allow an attorney’s fee whenever the cause was noticed for trial and was not reached upon the calendar, or was put over the circuit by the opposite party. And where an allowance was made to the attorney for “ arguing demurrer, special verdict,” &c., the fee was allowed at every term when the cause was noticed for argument, although the attorney did not in fact attend. This was done on the ground that the attorney, as such, never tries or argues the cause, and the fee must have been intended as an allowance for preparing the cause for trial or argument. (Wilson v. White, 2 Wend. 265 .) If we follow the settled construction of these statutes, the attorney’s fee was properly allowed.

The chancery suit is still pending, and it belongs to that court to determine who shall pay the costs of that proceeding. Those costs could not be taxed in this suit. The sum of $35 must be deducted from the hill as taxed.

Motion granted.

Cases cited

Wilson v. White 2 Wend. 265 N.Y. Sup. Ct. p. 55