p. 680Headnote
Where a case was set down for a particular day, and is not reached on that or any following day in the term, the prevailing party is entitled to a term fee, under § 301 of the Code, subdivision 8.Special Term, Nov., 1855.Application for instructions to the clerk.
The plaintiff had obtained judgment on a demurrer to the complaint, and on the taxation of his costs, claimed to be entitled to three term fees, of $10 eaeh, which the clerk, unless otherwise directed by the court, had refused to allow. The plaintiff, npon notice, applied for this direction.
Peck for plaintiff.
Fullerton for defendant.
-The question whether the plaintiff is entitled to the term fees which the clerk has declined to tax, depends upon the construction to be given to subdivision 8; of section 807 of the Code, which gives to the prevailing party $10 for each term at which the cause is necessarily “on the calendar, and not reached, or postponed.”
In this ease the cause was regularly (which I presume is the meaning of “necessarily”) on the calendar at each of the terms for which the disputed fees are claimed; at each, when duly called in its order, by the consent of the parties, it was set down for trial on a subsequent day in the same term, and owing to the precedence thus given to other cases, was not again reached. Was it so “reached," giving a reasonable interpretation to the provisions of the Code, as to bar the claim of the plaintiff?
p. 681I Rave consulted my brethren, and we are all of opinion it was not. Is it quite just that no term fee should be allowed when the parties refuse or neglect to try the cause at a term for which it is regularly noticed, but we do not think that there is any such refusal or neglect, if before, or at the time, the cause is reached in its order on the calendar, it is set down by the court at the request of the parties for trial on a subsequent day. We are bound to presume that the parties meant to be, and were, prepared to try the cause on the appointed day, and no
lachea is therefore imputable should it not have been reached on that or any subsequent day of the term. A term fee is given to compensate the labor and expense of a preparation for trial, and it ought never to be denied to the successful party when there is no reason to doubt that the preparation was made, and without his fault a trial prevented. When a cause is set down for a particular day, it has no place on the calendar until that day arrives, and until then cannot be said to have been reached. The effect of transferring the cause from its first place on the calendar to a particular day, is precisely' the same as if, by a special order, it had been originally noticed for that day.
The clerk will therefore be directed to allow the term fees which he declined to tax.