Jacob Hoffman Brewing Co. v. Volpe — 23 N.Y.S. 812

Majority

p. 812

(4 Misc. Rep. 260.)

JACOB HOFFMAN BREWING CO. v. VOLPE et al.

(City Court of New York,

General Term.

June 19, 1893.)

Headnote

Costs—Trial Fee—Inquest on Default.

An inquest, taken on default, to ascertain the amount of plaintiff’s claim,, is a trial, for which plaintiff is entitled to tax, as costs, a trial fee; and where the default is subsequently opened, resulting in a verdict and judgment in plaintiff’s favor, he is entitled to tax, as costs, two trial fees.

Appeal from special term.

Action by the Jacob Hoffman Brewing Company against Louis Volpe and others. There was a judgment in plaintiff’s favor. From an order reversing the clerk’s taxation of costs, allowing plaintiff' two trial fees, plaintiff appeals.

Reversed.

Argued before McGOWN, VAN WYCK, and FITZSIMONS, JJ..

Campbell & Murphy, for appellant.

Wm. E. Morris, for respondents.

It appears that on November 16th an inquest was taken, which was thereafter opened, and the cause finally tried on April 19th, resulting in the verdict for plaintiff, upon which the-judgment was entered after taxation of costs on notice. Upon this taxation the clerk allowed $30 as trial fee for the inquest, and $30 as trial fee of the final trial, and from which defendants appealed to the special term, where the clerk’s taxation of the first trial fee was reversed, and it is from such reversal that this appeal is taken. This order of reversal recites that the inquest was “duly taken,” and the first judgment “duly entered,” and that thereafter the defendants’ default was opened, and the final trial had, at which was returned, for plaintiff, the verdict upon which the second and final judgment was entered. There is no other or further proof in the record, as regards the inquest, the first judgment, the opening of defendants’ default, the final trial, or the second judgment,. Upon the record on appeal the clerk’s taxation of two trial fees, of $30 each, was correct, and should not have been reversed, for it has been repeatedly held that an inquest is such a trial as entitled plaintiff to a trial fee of $30. Wessels v. Carr, (City Ct. N. Y.) 6 N. Y. Supp. 535 . The order appealed from is reversed, with $10' costs and disbursements. All concur.