Candee v. Ogilvie — 12 N.Y. Super. Ct. 658

Majority

p. 658

Candee v. Ogilvie.

Headnote

Whether the costs of a plaintiff “ for all proceedings before notice of trial,” shall • be $7 or $12, depends solely apon the nature of the action, .and not at all upon the fact whether an answer is, or is not put in. (Code, section 307, sub. 1.)

After the cause had been two terms on the calendar on the plaintiff’s notice, he moved out of court on a five days' notice, and obtained judgment, on account of the frivolousness of the answer. Held, that .he coul4 not tax $10 a term for , .either of those terms.

At Chambers,

February 15, 1856.

(with the concurrence of the other Justices,) held, as above stated. He held, that $12 could be allowed under sub. 1 of section 307, in those actions only, in which an application for judgment, when a defendant fails to answer, must be made to the court. In all others, only $7 can be allowed whether an answer or demurrer is, or is not, interposed.

That the plaintiff could have obtained a judgment without noticing the action for trial or placing it on the calendar. And having, in fact, obtained a judgment, on a motion made to a Judge out of court, under section 247 of the Code, he was not at liberty to take the ground that the cause had been necessarily placed on the calendar, whatever might have been his rights, if it had been called in its order on the calendar, on due notice of trial, and a verdict had been taken, then before the court, or a jury.