Third National Bank v. McKinstry — 9 N.Y. Sup. Ct. 443

Majority

p. 443

THIRD NATIONAL BANK OF SYRACUSE, Respondent, v. ALEXANDER McKINSTRY and others, Appellants.

Headnote

Trial— what is not.

Where, after the trial of a cause had been commenced at the circuit, a jury impaneled, and a witness sworn and examined, the court ordered that the cause be referred to a referee to hear and determine, held, that such proceedings at the circuit did not constitute a trial of the action.

p. 444

Appeal from an order made at the Special Term, disallowing the taxation of a trial fee for the circuit in favor of the defendant.

The trial of this action was commenced at the circuit, a jury impaneled, and a witness sworn and examined, when the court ordered “ the cause referred to Cyrus Sweet, sole referee, to hear and determine the same, costs to abide the event.”

The cause was then tried before the referee, and resulted in favor of the defendants. The defendants claimed to tax two trial fees, one before the referee, and one for a trial at circuit. The court, at Special Term, disallowed the item of trial fee at circuit, and allowed in place thereof, a term fee.

Wm. C. Ruger, for the appellants,

cited 4 Robt., 654; 8 How., 1 ; 6 id., 465; 8 id., 4; 1 Abb., 125 ; 4 Sand., 688; 38 How., 349 ; 7 id., 161; 14 Barb., 577 .

Hiscock, Gifford & Doheny, for the respondent,

cited 38 How., 349 ; 6 id., 465 ; 28 id., 184; 30 id., 36; 1 Code Rep., 134 ; 35 How., 410 ; 4 Duer, 639 .

A trial is a judicial examination of the issues between the ■parties.^[1] Such an examination may be had without being followed by a conclusion, determination or verdict; e. g., when a jury disagrees, or a juror is withdrawn, or when a complaint is dismissed. But when the court refuses to examine the issues, and, of its own motion, sends the case to a referee, it would be a stretch of common sense and of law to hold that there had been a trial. What issue of law or of fact was judicially examined by such a proceeding ? And yet it is only for a trial, so defined, that a trial fee is allowed.'^[2] None of the cases cited by the appellant support his appeal.

We think the order appealed from should be affirmed.

Order affirmed.

* Code, § 352.

† † Code, § 307, sub. 4.