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Weiss v. Morrell

58 N.Y. St. Rep. 319 Court N.Y.C.P. Decision date 1894-03-08 English

Delivered by Daly, ,C. J.

Contents

Majority

p. 319
Ignatz Weiss et al., Resp’ts, v. Joseph B. Morrell et al., App’lts.
(New York Common Pleas, General Term,
Filed, March 8, 1894.)

Headnote

Costs—Trial fee.
A trial fee is always allowed, the plaintiff upon an inquest.
p. 320
Appeal by defendants from an affirmance, by the general term of the city court, of an order denying their motion to set aside the judgment; and from an order affirming the clerk’s adjustment of costs, allowing the plaintiffs upon taxation, a trial fee of thirty dollars for an issue of fact. The complaint was for work, labor and services, in making up materials furnished by defendants into uniforms, at the agreed price of $1,856.70. The answer set up that the work was not done in a good and workmanlike manner; that plaintiffs failed to return surplus cloth to the damage of defendants to the amount of any demand of plaintiffs which might be proved on the trial. The action having been regularly reached upon the calendar the defendants failed to appear, their default was entered, an inquest taken and plaintiffs entered judgment.
Charles Edward Souther, for app’lts; Alfred B. Jaworower and Louis Lowenstein, for resp’ts.

The contention of defendant is, that plaintiffs were not entitled to thirty dollars trial fee for their inquest, because there was no trial of an issue of fact; there being no denial in the answer and the affirmative defense therein set up not having been tried; and a trial fee only being allowed upon the trial of an issue of fact. Code, § 3251, sub. 3. It is argued that a plaintiff being entitled only to a verdict, decision or judgment, Code,' § '980, and these plaintiffs, not being entitled to a verdict or decision because there was no issue tried, were entitled to a trial fee in taking judgment. An issue of fact was presented by the pleadings upon the defendants’ plea of recoupment which was to be deemed controverted by plaintiffs. Code, §§ 522, 964. This issue was disposed of by the judgment taken by the plaintiffs on ■defendant’s default, and such judgment was conclusive against defendant’s claim. Embury v. Conner, 3 N. Y. 522 . An issue is tried and determined whether the party holding the affirmative appears or not, and the successful party is, therefore entitled to his trial fee. A trial fee is always allowed the plaintiff upon an inquest. Hawley v. Davis,' 5 Hun, 642 ; Wessels v. Carr, 6 N. Y. Supp. 535 ; Pomeroy v. Hulin, 7 How. Prac. 101. A trial fee is taxable where the complaint is dismissed on failure of plaintiff to appear. Dodd v. Curry, 4 How. 123 . Also where the cause is discontinued while on the day calender, although it had not been actually called. Duperey v. Phoenix, 1 Abb. N. C. 133 . In none of these cases are there a trial other than such as was had in this case. The order appealed from must be affirmed.

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