Cohen v. Cohen — 79 N.Y. Sup. Ct. 393

Majority

p. 393

Lucia Cohen, Respondent, v. Abraham Cohen, Appellant.

Headnote

Costs — judgment- by default — -no trial fee taxable.

A trial fee cannot he taxed in the case of a default in the service of an answer or demurrer where the court simply takes proof to determine whether the plaintiff is entitled to judgment.

Appeal by the defendant, Abraham Cohen, from an order overruling the clerk’s refusal to tax a trial fee of $30, and $15 costs herein, entered in the office of the clerk of the city and county of New York July 14, 1893.

p. 394

Samuel G. Ada/ms, for the appellant.

Howe (& Hummel, for the 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.

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.

Present —Van Brunt, P. J., Follett and Parker, JJ.

Order reversed and the clerk’s taxation affirmed, without costs.