Majority
p. 387(72 Hun, 393.) COHEN v. COHEN. (Supreme Court, General Term, First Department. October 13, 1893.) Argued before VAN BRTJNT, P. 3"., and FOLLETT and PARKER, JJ.
Headnote
1. Costs—Trial Fee.Code Civil Proc. § 3251, provides that a trial fee shall be allowed for the trial of an issue either of law or of fact. By section 964 an issue of law or fact can arise only where an answer, demurrer, or reply has been served. Held, that where there is neither an answer, demurrer, nor reply, in an action for divorce, and the court gives judgment for plaintiff on her application after taking proof, plaintiff is not entitled to a trial fee.
2. Same—Costs after Notice of Trial.
In such case, as a notice of trial is neither necessary nor proper,, plaintiff is not entitled to costs after notice of trial.
Appeal from special term, New York county.
Action by Lucia Cohen against Abraham Cohen for divorce. From an order reversing the taxation of costs by the clerk, who disallowed the item contained in plaintiff’s bill of costs of $30 for trial of an issue of fact, and $15 for proceedings after notice and before trial, and allowing such items, defendant appeals.
Reversed.
Nathan Lewis, (Samuel Gr. Adams, of counsel,) for appellant.
Howe & Hummel, for respondent.
By section 3251 of the Code, a trial fee is allowed for the trial of an issue either of law or fact By section 964, an issue of law or fact can only arise where an answer, demurrer, or reply has been served. There being no answer, demurrer, or reply, no issue of law or fact was joined in this case. The application to the court was a mere application for judgment, and the court simply took proof to determine whether the plaintiff was entitled to judgment.
p. 388
The plaintiff is not entitled to tax a trial fee or costs after ■notice of trial, no such notice being necessary or proper in the progress of the action. The order appealed from, should be reversed, and the clerk’s taxation affirmed, without costs.