Wandell v. Hirschfeld — 40 Misc. 527

Majority

p. 527

Townsend Wandell et al., as Executors, Etc., Plaintiffs, v. Sophia Hirschfeld et al., Defendants.

(Supreme Court, New York Special Term,

April, 1903.)

Headnote

Costs — Under the general answer of an infant.

The interposition, upon the part of an infant defendant, of a general answer to the complaint raises an issue which requires proof, the resulting inquiry is a trial for the purposes of costs to the infant, and the trial is none the less one because the witnesses thereat were not cross-examined in the infant’s behalf.

Motion for a new taxation of costs.

Thomas W. Butts, for plaintiffs.

Ralph Nathan, for defendant Hirschfeld.

Hess & Holstein, for defendant W. J. Stafford.

Frank L. Crawford, guardian ad litem, for infant defendant Brown.

The infant’s general answer so far placed the averments of the complaint at issue as to call for proof in support of the cause of action. The inquiry which resulted was a trial, for the purpose of the provisions of the Code relative to the allowance of costs. Roosevelt v. Schermerhorn, 32 Misc. Rep. 287 . And this trial, originating in the joinder of issue, was not to become less of a trial, or no trial, because of the absence of cross-examination in the infant’s behalf. A trial fee follows an inquest and does not depend upon the presence of an active controversy when the evidence in support of the case is presented to the designated tribunal. The hearing had in pursuance of the order of reference to take proof, after the service of the infant’s answer, was a trial, for the purposes of the taxation of costs, and the items in question should be taxed. Motion granted. Order may be presented on notice.

Motion granted.

Cases cited

Roosevelt v. Schermerhorn 32 Misc. Rep. 287 N.Y. Sup. Ct. p. 527