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Kelley v. Kelley

123 Misc. 583 Court Supreme Court, Chemung Special Term, Decision date 1924-08-13 English

Delivered by Thompson, J.

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Anna B. Kelley, Plaintiff, v. Enoch J. Kelley, Defendant.
Supreme Court, Chemung Special Term,
August 13, 1924.

Headnote

Costs — motion, to review' taxation, of costs in consolidated action —• costs may not be taxed in discontinued actions upon final judgment unless provision is made therefor in order of consolidation — item of fifteen dollars “ costs after notice and before trial of issues before the court ” properly disallowed — application for judgment upon verdict in action for divorce not trial — item of twenty dollars for term fees properly disallowed.
Where two or more actions are consolidated under the provisions of the Civil Practice Act, they are at an end and are deemed discontinued. No costs in
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those actions can be taxed upon the final judgment unless provision therefor is made in the order of consolidation.
Accordingly, plaintiff’s motion to review the clerk’s determination, in taxing a full bill of costs in the consolidated action and in refusing to tax costs in the actions before consolidation, will be denied.
An item of fifteen dollars “ costs after notice and before trial of issues before the court ” in the consolidated action was properly disallowed where there was no trial of an issue of fact before the court. The application for judgment upon the verdict, attended by the taking of certain additional proofs, in an action for divorce, is not a trial and a successful plaintiff is not entitled to tax a trial fee or costs after notice of trial under such circumstances.
An item of twenty dollars term fees for two terms was properly disallowed since both terms had passed before the consolidation order was granted.
Motion to review taxation of costs under section 1536 of the Civil Practice Act.
James 0. Sebring, for the plaintiff.
Stanchfield, Collin, Lovell & Sayles, for the defendant.

This action is the successor of two actions which were consolidated by an order granted and. entered October 1, 1921. Plaintiff succeeded at the trial, which took place October 17, 1921.

Here we must review the clerk’s determination on taxation of plaintiff’s costs, in which, after taxing a full bill in the consolidated action, he refused to tax any costs in the actions before consolidation.

The clerk must be sustained. When two or more actions are consolidated under the provisions of the Civil Practice Act, they are at an end and are deemed discontinued. No costs in those actions can be taxed upon the final judgment unless it is so provided in the order of consolidation. Milliman Costs, 410; Hiscox v. New Yorker Staats-Zeitung, 3 Misc. Rep. 110 ; 2 Rumsey Pr. (2d ed.) 552; German Exchange Bank v. Kroder, 14 Misc. Rep. 179 , 181; 15 C. J. 68.

Provision for such costs must be made in the discontinued actions before they finally cease to exist. Otherwise costs are only authorized in the consolidated action. Blake v. Michigan Southern & Northern Indiana Railroad Co., 17 How. Pr. 228 ; Dunning v. Bank of Auburn, 19 Wend. 23 .

An item of fifteen dollars “ costs after notice and before, trial of issues before the court ” in the consolidated action was also disallowed. In the same connection plaintiff claimed, and was properly allowed, fifteen dollars “ costs after notice and before trial of issues of fact before a jury.” There was no trial of an issue of fact before the court. The application for judgment upon the verdict, attended by the taking of certain additional proofs required

p. 585
by law, and to inform the court, in a divorce case, is not a trial. And in such case a successful plaintiff is not entitled to tax a trial fee or costs after notice of trial therefor. Cohen v. Cohen, 72 Hun, 393 .

An item of twenty dollars, term fees for the April and June terms, 1921, was disallowed for reasons urged by defendant which are not discussed here. Obviously these two term fees were not taxable in any event, both terms having passed before the consolidation order was granted. No determination has been reached in reference to the reduction of the witness fees from fifty-two dollars to forty-eight dollars, facts applicable to the question not being available.

The taxation of costs is sustained, and the motion is denied, with costs.

Ordered accordingly.

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