Neilson v. Mutual Insurance — 10 N.Y. Super. Ct. 683

Majority

p. 683

Neilson v. The Mutual Insurance Company.

Headnote

When a case, containing the facts upon which a controversy depends, is agreed upon, under § 372 of the Code, and judgment is rendered thereon, at a General Term, in favor of the defendant, he is not entitled to costs for any proceedings before notice of trial, nor to a fee of $15, before argument, nor to a fee of $30, for argument. He may be allowed a trial fee of $12. The hearing at a General Term, is, in effect, a trial of the issues of law arising upon the admitted facts.

At Chambers,

Sept. 26, 1854.

This case came before the court, at General Term, under § 372 of the Code, and judgment was rendered in favor of the defendant. In his bill of costs presented for adjustment, were these charges, viz.

Costs of proceedings before notice of trial, - $ 5

“ before argument, - - - 15

“ for argument,.....30

The clerk dissallowed them, and the defendant applied to have the adjustment corrected.

Wm. Booth, for defendant.

S. H. B. Judah, for plaintiff.

held (with the concurrence of Oakley, C.J., and Duer, J.), that the clerk’s adjustment was correct. He said that § 373 is explicit, that no costs “ for any proceeding prior to notice of trial,” shall be allowed. The argument at General Term, is a trial of the questions of law arising upon the admitted facts. For this trial, the clerk allowed $12. The items of $15 and $30 are allowed only on appeal (§ 307, sub. 6). A hearing under § 372 is not one on an appeal, but an original hearing, or trial.