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Cole v. Lowery

23 N.Y.S. 674 Court Special Term. Decision date 1893-03-27 English

Delivered by GEECEBICH, J.

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p. 674
COLE et al. v. LOWERY et al.
(Common Pleas of New York City and County,
Special Term.
March 27, 1893.)

Headnote

Costs—Two Trial Fees—When Taxable.
Where a cause comes regularly on the calendar for trial at a trial term, and is" dismissed for failure of plaintiff to appear, and the default is after-wards opened without terms, and a trial had, which results in a dismissal of the complaint, defendant is entitled to two trial fees.
Action by Cyrus Cole and Charles E. Cole, comprising the firm of Cyrus Cole & Co., against Lowery and others, sureties on the bond of John C. Nobis, assignee for benefit of creditors of Charles Nobis. Complaint dismissed. Defendant Lowery moved to retax costs.
Motion granted.
William B. Mayer, for the motion.
Charles J. Hardy, opposed.

This cause came regularly on the calendar of this court for trial at a trial term held on the 14th day of November, 1892, and' upon the failure of the plaintiffs to appear the complaint was dismissed. Thereafter, on the plaintiffs’ motion, their default was opened, and the case set down for trial for the January term. No costs were imposed as a condition of the opening of the default. When the case was again reached for trial a jury was waived, and a trial was had on February 20, 1893, which resulted in a dismissal of the complaint. The defendant Lowery sought to tax two trial fees, but the clerk allowed only one. The plaintiffs insist that there was but one trial of the action. The rule is, however, that where a cause is at issue on issues of fact, and is regularly noticed for trial, and placed on the calendar, and, when reached in its order, the complaint is dismissed on the failure of the plaintiff to appear, there has been a trial of the action. Dodd v. Curry, 4 How. Pr. 123 ; Rogers v. Degen, 10 Abb. Pr. 314 ; Mora v. Insurance Co., 10 Bosw. 622 ; Van Gelder v. Hallenbeck, 2 N. Y. Supp. 252 . The defendant Lowery is therefore

p. 675
entitled to two trial fees,—one for the dismissal of the complaint, and the other for the trial of the action,—and the clerk will tax the same accordingly. Retaxation ordered.

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