Starr Cash-Car Co. v. Reinhardt

Headnote

Costs—Trial Ebb.

Defendants, after the case had been called, for trial, and plaintiff had moved for judgment on the pleadings, paid a jury fee to the clerk, and asked leave to withdraw a juror, and amend their answer, which was granted. A second trial resulted in a verdict for plaintiff. Held, that plaintiff was not entitled to a trial fee for an alleged trial on the day when the cause was first called.

Appeal from special term.

Action by the Star Cash-Car Company against Henry Reinhardt and another. From an order taxing costs against defendants, they appeal. Modified.

For former report, see 20 N. Y. Supp. 872 .

The two trials for which trial and jury fees were taxed by plaintiff were held, respectively, on the 6th and 13th days of November, 1891. The first trial, held on November 6, 1891, resulted in the defendants, after the case was regularly called and moved for trial, and a jury fee of $13 paid to the clerk of the court, at his request, by the attorneys for plaintiff, and after a motion made by plaintiff’s attorneys for a judgment for the amount set forth in the complaint, upon the pleadings, throwing themselves upon the mercy of the court, and asking for leave to withdraw a juror and to amend their answer. This the court granted, against plaintiff’s objections, upon payment to plaintiff of $35 costs as a penalty. The second trial was held November 13, 1891. It was called and moved for trial in regular order. At the request of the clerk of the court, plaintiff paid him $13 jury fee. A jury was impaneled and sworn, and thereupon plaintiff again moved for judgment on the pleadings, which motion was granted, and the jury directed to bring In a verdict for the full amount demanded in the complaint. The objections raised by defendants to the aforesaid items of said bill of costs as taxed are as follows, viz.: (1) That there had only been one actual trial of the issues; that both the former trials were denied and set aside by order of the general term. (2) That plaintiff ought not to be allowed to tax costs for more than one jury fee, on the ground that on the first trial the defendants had asked that a juror be withdrawn, which motion was granted upon payment of $30 costs; and that the jury were not entitled to be paid inasmuch ss no judgment had been rendered. (3) That the allowance of a jury fee of $13 for the second trial was erroneous, because their judgment was rendered upon the direction of a verdict on the pleadings, and no question was submitted to the jury. (4) That they further objected to the allowance of

said item because such costs were wiped out and ineffectual against the defendants by the reversal of said judgment which contained the said costs.