Smith v. Miller — 6 Hill & Den. 396

Majority

p. 396

Smith vs. Miller.

Headnote

A notice of trial and inquest for the judge is unnecessary, and cannot he taxed as as part of the plaintiff’s costs.

Under an order made at the circuit postponing a cause on payment of costs, the plaintiff cannot tax either for a brief or copy pleadings.

The costs to be paid under such order are for services which must be repeated, and ■ for which the plaintiff might not be paid at all if they were left to abide the event. Per Beardsley, J.

Re-taxation of Costs. This cause was put off at the circuit on payment of costs, and the plaintiff’s bill contained the following items, which were allowed by the taxing officer: “ Notice of trial for judge, $0,25: Notice of inquest for judge, $0,25: Brief, $3,00: Copy pleadings, $3,00.”

p. 397

J. Gaul Jr., for the defendant,

objected that these items were not taxable.

Jordan fy Newkirk, contra.

In practice, no notice of trial or inquest is ever served on the judge, nor is such notice necessary. The charges for these services should therefore be disallowed.

The fee bill allows three dollars for a copy of the pleadings to be used by the court upon the trial, but no more than one copy can be taxed in the same cause; (Laws of 1840, p. 328;) and the like sum is allowed for drawing brief for the trial and copies thereof. (Id. p. 330.) These papers are prepared for the trial, and may be used on that occasion whenever it shall occur. They are as well adapted to a subsequent circuit as to the one for which the cause is first noticed. The costs to be paid on putting off a trial are for services which must be repeated, and for which the plaintiff might not be paid at all if they were left to abide the event.^[1] The charges for brief and copy pleadings are not of this description, and must be disallowed.

Motion granted.

(a) (a) See Morrell v. Gould, ( 5 Hill, 553 .)