Van Valkenburgh v. Van Alen — 1 How. Pr. 86

Majority

p. 86

Catharine Van Valkenburgh vs. Isaac P. Van Alen.

Headnote

Subpcena tickets made out in good faith for trial at circuit, are chargeable, although not served, where the cause by arrangement is referred. The act of 1844 is retrospective in its operation upon costs incurred under the act of 1840; if taxed since the act of 1844.

Motion by defendant for retaxation of costs.— Defendant objected on taxation to $1 for attending judge to obtain order for bill of particulars; one dollar, for appearing on the day to show cause; twelve subpoena ■ tickets, $3, upon the ground that said tickets had not been served, and because the attorneys for the respective parties mutually agreed to refer said cause on the morning of the first day of the circuit, and the same was referred by the circuit judge. $2,00, for counsel perusing and amending declaration ; first, because there was no certificate of counsel produced, showing that the service had been performed, and said declaration was special; second, because it was not a taxable item under the fee bill of 1840, under which the costs in this cause must be taxed.

p. 87

as the suit was commenced before the amendments of 1844, and before said fee bill went into operation: and, third, that said declaration contained only the common counts. And $3 for counsel attending court to try, because the cause was referred before trial, and that no such fee was allowable under the act of 1840, the suit having been commenced before the act of 1844.

J. Koon, Hefts Counsel. C. P. Schermerhorn, Hefts Atty.

M. T. Reynolds, Plffs Counsel. W. H. Tobey, Plffs Atty.

The charge of $1.00 for attending judge to obtain order for bill of particulars is not taxable. The charge of $1.00 for appearing on the day to shew cause, is taxable. If subpoena tickets are actually made in good faith for the circuit and the cause is subsequently disposed of by arrangement between the attorneys to refer the same, the charge for the tickets is taxable, although not served. The charge for the subpoena tickets $3.00 is therefore allowed. The charge for perusing and amending declaration, and counsel attending prepared to try, are allowable, if actually rendered, although the suit were commenced prior to the act of 1844, if the costs were not taxed until after that act went into operation, which is the fact in this case.

Rule accordingly.