Majority
p. 463Lucia Cohen, Resp’t, v. Abraham Cohen, App’lt. (Supreme Court, General Term,, First Department, Filed October 13, 1893.)
Headnote
Divorce—Costs.Where there is neither answer, demurrer nor reply in an action for divorce, the plaintiff is not entitled to tax a trial fee nor costs after notice of trial.
Appeal from order reversing a taxation of costs by the clerk and allowing thirty dollars for a trial fee and fifteen dollars for costs after notice of trial, which .had been disallowed by the clerk.
Nathan Lewis (Samuel G Adams, of counsel), for app’lt; Howe & Hummel, for resp’t.
By § 3251 of the Code a trial fee is allowed for the trial of an issue either of law or fact By § 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.
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.
Yak Brunt, P. J., Follett and Parker, JJ., concur.