Lockwood v. Salmon River Paper Co. — 49 N.Y. St. Rep. 302

Majority

p. 302

Sarah E. Lockwood, App’lt, v. The Salmon River Paper Co. et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

Costs—Teial bee—Discontinuance.

On the call of the calendar the case was announced ready for trial, hut

p. 303

a notice of discontinuance was served and nothing further was done at that term. An order of discontinuance having been subsequently entered, Held, that defendants were not entitled to a trial fee.

Appeal from orders denying motion for readjustment of costs. Action to foreclose a mortgage.

John I. Gilbert, for app’lt; McClary & Paddock (Frederick C. Paddock, of counsel), for resp’t, Salmon River Paper Company ; Cantwell & Cantwell ( William, P. Cantwell, of counsel), for resp’t, F. D. Kilburn, trustee, etc.

The affidavits show that this case was upon the calendar of the Franklin county circuit in March, 1892, and upon the call of the calendar was announced as ready for trial. But before it was reached or moved for trial plaintiff served upon defendants a notice of discontinuance, and no further proceedings were taken in the case at that circuit. At a subsequent special term an extra allowance was granted to each of the defendants and an order entered discontinuing the action. The defendants might have insisted upon moving said cause when it was reached on the calendar and on having said cause dismissed at the circuit, and in that case would have been entitled to a trial fee. The service of the notice of discontinuance, without an order being entered, did not stay defendants’ proceedings, but as the cause was not in fact moved or dismissed at the circuit I am unable to see how a trial fee can be properly allowed. Sutphen v. Lash, 10 Hun, 120 ; Studwell v. Baxter, 33 id., 331; Oelbermanv. Rosenbaum, 4 N. Y. Sup. 210 ; 2nd Ramsay’s Practice, and cases cited.

In Jones v. Case, 38 How., 349 , the cause was reached and moved for trial. See Ehlers v. Willis, 63 How., 341 . The distinction between Jones v. Case and the present action is apparent. In this case on the regular call of the calendar it was announced as ready for trial. Afterwards a notice of discontinuance was served and nothing further was done with the cause at that circuit. In Jones v. Case, the cause was actually reached and moved for trial and the court held that moving a cause for trial was equivalent to a trial under the circumstances.

The orders should be reversed, with costs and printing in each case, and the motions for retaxation in each case granted, with costs. But as the defendants are entitled to a calendar fee for the term in question, to save the parties from a future motion, the better course is to enter an order directing the clerk of Franklin county to deduct from each bill of costs as taxed twenty dollars.

Mayham, P. J., and Herrick, J., concur.