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Kronsberg v. Mayer

15 N.Y.S. 328 Court N.Y. Super. Ct. Decision date 1890-11-01 English

Delivered by Dugro, J.

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p. 328
Kronsberg v. Mayer.
(Superior Court of New York City, Special Term.
November 1, 1890.)

Headnote

Costs—Trial Fee—Discontinuance.
A cause was on the day calendar, and both sides ready, when it was discontinued by consent, on defendant’s stipulating to pay taxable costs. It appeared that the case was not reached in its regular order. It had been called and passed, so that it could not have been called for trial. Meld, that a trial fee was not taxable.
Action by Frederick Kronsberg against Hugo F. Mayer for libel. A judgment by default had been reopened, and both parties had announced themselves ready for trial, when they settled the case, defendant stipulating to pay taxable costs. A trial fee was taxed, and defendant moves for a relaxation.
Maximus A. Lesser, for plaintiff. Ashbel P. Fitch, (Robert S. Edler, of counsel,) for defendant.

It seems that this action was. upon the day calendar, and both sides ready, when it was discontinued by consent, upon defendant’s stipulating to pay taxable costs. It appears that the case was -not actually reached in its regular order. It had been called and passed, and could not, therefore, be moved for trial. Ho trial fee is therefore recoverable. Sutphen v. Lash, 10 Hun, 120 ; Ehlers v. Willis, 63 How. Pr. 341 , are in point, but not Jones v. Case, 38 How. Pr. 349 . The taxation is reversed as to the trial fee, and the motion to strike it out granted, with $10 costs.

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