p. 33Tillspaugh agt. Dick and others.Headnote
The dismissal of a complaint, on motion at a special term, for want of prosecution, is a judgment in the action in favor of the defendant.In such case defendant is entitled to $5 for proceedings before trial, and $10 may be allowed on the motion. But defendant is not entitled to $7 for subsequent proceedings, nor to a trial fee on the dismissal of the complaint. The clerk in such case is not entitled to a trial fee of $1, nor to any charge for entering the order, but may charge 50 cents for entering judgment.
This was a motion for readjustment of costs. The complaint was dismissed “ with costs,” as to defendant Dick, at the last December special term, for the reason that the defendant had not brought the action to trial according to the course and practice of the court.
The following costs were allowed on adjustment
Costs of proceedings before trial,................... $5*00
Subsequent proceedings before trial,________________ 7*00
November Cicrcuit, Schoharie co., cause on calendar,- - 10*00
Motion to dismiss complaint,...................... 10*00
Clerk’s fees on motion to dismisss complaint, ........ 1*00
Clerk for certified copy order, two folios,............ 10
entering order, two folios,........ 12
commissioner’s fees for taking four affidavits,. 50
postages paid and prospective............. 57
The cause had never been noticed for trial at the circuit by the plaintiff", or by the defendant Dick. It had once been noticed and put on the calendar by another defendant as to whom the complaint had been dismissed.
H. Smith, for Plaintiff.
J. H. Reynolds, for Defendant.
The dismissal of the complaint was a judg ment in favor of the defendant and entitled him to recover whatever items of costs are given by the Code for services ren
p. 34dered. The first item of $5, for proceedings before notice of trial was properly allowed. The charge of $7, was improperly allowed. That is only chargeable for services rendered after notice of trial and before trial, and as to this defendant, the cause had never been noticed for trial. For the same reason the circuit fee of $10 was not chargeable. The cause had been put on the calendar on the notice of anothér defendant. It was never on the calendar as between these parties.
The only objection to the allowance of the charge of $10 on the motion to dismiss the complaint, is that the amount of costs is not specified in the rule dismissing the complaint. But the omission was undoubtedly clerical, as the order was granted “ with costs.” I shall, therefore, allow an amendment by inserting the words “ ten dollars,” so that it will read “ with ten dollars costs.” It was claimed that $12 should have been allowed as a trial fee on the dismissal of the complaint. But there was no trial. A trial is the judicial examination of the issues between the parties (Code, §252). Here was no examination whatever of the issues, but the bill was dismissed merely because the plaintiff had neglected to bring the issues to trial. It is otherwise where the plaintiff applies for judgment on the ground of the frivolousness of a demurrer, answer or reply (Code, §247; 7 How. Pr. R. 396). In the latter case, there is necessarily a judicial examination .of the issues.
There being no trial, the clerk was not entitled to the charge of $1, nor to any charge for entering the order. But he had a right to charge for the copy of the order at five cents per folio, and fifty cents for entering'judgment.
There must be a readjustment of the costs according to the directions above given, neither narty to have costs of this motion.