Rogers v. Degen — 17 N.Y. Super. Ct. 669

Majority

p. 669

Rogers v. Degen et al.

Headnote

1. Where an action, at issue on questions of fact, is noticed for trial, and when reached in its order on the calendar, the complaint is dismissed by reason of the failure of the plaintiff to appear, an allowance under section 309 of the Code may he made, if the action be a difficult or extraordinary one.

2. The word trial as used in that section, and in section 307, subdivision 4, has a wider meaning than is imported by the words, “ the judicial examination of the issues between the parties.”

(At Special Term, April, 1860.

Before Robertson, J.)

The facts of this case are fully stated in the opinion of the Court.

The motion in this case is for an allowance under section 309, upon the dismissal of the complaint by default, upon proof of service of notice of trial of issues of law when the cause was reached in its order on the calendar, and the question whether an allowance can be made, must turn upon that other, whether such judgment by default is “ a trial ” within the meaning of that section. It is very evident that the allowance is not given as a trial fee alone, or counsel fee for trying the cause, (McQuade v. N. Y. & Erie R. R., 5 Duer, 613 ,) because it is the difficult and extraordinary character of the case, not of the trial which determines the right to the allowance; the mere trial alone forms by itself a contingency on which the right of an allowance depends, because section 322 excludes it upon a settlement before judgment, whereas, after a trial, costs follow to be included in the judgment. The only remaining question is solved by the Code; and here I do not' think the definition in

p. 670

section 252 is strictly applicable as there can hardly be said to be a “judicial examination” when the default of a party is taken; but in regard to costs, and indemnity of expenses, I think the term has a wider meaning, and this being a modified continuation of a prior fee bill, in which “trial” included every mode of disposing of issues in a cause. In this sense it is used in section 807 of the Code, where under the 4th subdivision it has been held that the word “trial” as applied to issues of fact, included judgments by default, (Dodd v. Curry, 2 Code R., 69; S. C., 4 How., 128 ,) and it certainly must include similar judgments in issues of law mentioned in the same. subdivision, and such was the view undoubtedly taken" in Lawrence v. Davis. (7 How. Pr. R., 354.) The fact that no evidence is taken, or other proceedings are had on a trial, is immaterial. (Shannon v. Brower, 2 Abb. Pr. R., 377.) The only effect of want of litigation on the trial would be to reduce the amount of counsel fee, or extra allowance, not to defeat the right to it altogether.

I think this a proper case for an allowance of five per cent on the amount claimed.