Potter v. Ellis — 5 Hill & Den. 511

Majority

p. 511

Potter vs. Ellis.

Headnote

Though a cause was twice tried before referees, their first report having been set aside with a direction that the costs abide the event; held, that the prevailing party was not entitled to charge a brief for each trial.

An attorney’s fee for each trial, however, is taxable in such case. Per Bronson, J.

E. H. Rosekrans, for the defendant,

moved for a re-taxation of costs. The cause had been twice tried before referees, the first report having been set aside by the court and the costs directed to abide the event, The plaintiff taxed a brief for each trial or hearing,

H. R. Wing, contra,

said the attorney had been allowed a trial fee on each hearing without objection, and there was the

p. 512

same reason for allowing a brief for each. The words of the statute are substantially the same in both cases. (Sess. Laws of 1840, p. 330.)

Attending or preparing for each trial is a service actually performed by the attorney, and two trial fees may therefore be properly taxed where, as in. this case, the costs of the first trial are ordered to abide the event of the suit. But a new brief is not supposed to be necessary for'a second trial of the same issue, and we think that two briefs should not have been allowed.'

Motion granted.