Wandell v. Hirschfeld — 82 N.Y.S. 879

Majority

p. 879

(40 Misc. Rep. 527.)

WANDELL et al. v. HIRSCHFELD et al.

(Supreme Court, Special Term, New York County.

April, 1903.)

Headnote

1. Costs—Action against Infant.

Where the general answer filed by an infant defendant raises an issue requiring proof, the resulting inquiry constitutes a trial for the purposes of costs to the infant, though the witnesses thereat were not cross-examined in the infant’s behalf.

Action by Townsend Wandell and others against Sophia Hirschfeld and others. Judgment for defendants. Motion for taxation of costs.

Granted.

Thomas W. Butts, for plaintiffs.

Ralph Nathan, for defendant Hirschfeld.

Hess & Holstein, for defendant W. J. Stafford.

Frank E. Crawford, guardian ad litem, for infant defendant Brown.

The infant’s general answer so far placed the averments of the complaint at issue as to call for proof in support ■of the cause of action. The inquiry which resulted was a trial for the purpose of the provisions of the Code relative to the allowance of costs. Roosevelt v. Schermerhorn, 32 Misc. Rep. 287 , 66 N. Y. Supp. 366 . And this trial, originating in the joinder of issue, was not to become less of a trial, or no trial, because of the absence of cross-examination in the infant’s behalf. A trial fee follows an inquest, and does not depend upon the presence of an active controversy when the evidence in support of the case is presented to the designated tribunal. The hearing had in pursuance of the order of reference to take proof, after the service of the infant’s answer, was a trial for the purposes of the taxation of costs, and the items in question should be taxed. Motion granted. Order may be presented on notice.

Motion granted.

Cases cited

Roosevelt v. Schermerhorn 32 Misc. Rep. 287 N.Y. Sup. Ct. p. 879