Crawford v. Kelly — 23 N.Y. Super. Ct. 697

Majority

p. 697

John Crawford, Plaintiff and Respondent, v. John Kelly, Sheriff, &c., Defendant and Appellant.

Headnote

1. Term fees are not taxable for terms, during which the cause was reserved generally, not by order of the Court, but by a consent filed.

2. Where an order made at Special Term is correct on the facts there presented, the Court will not interfere with it on appeal upon an agreed statement, presenting, essentially, different facts.

( Before Moncrief, Robertson and Monell, J. J.)

Heard, January 24;

decided, February 28, 1863.

p. 698

This was an appeal from an order made by the Chief Justice, directing a readjustment of the defendant’s costs as taxed by the Clerk.

The facts admitted on the hearing at the Special Term, and for the purposes of this appeal reduced to writing, and agreed to by the respective parties, were as follows:

1st. This action was first placed upon the trial calendar of this Court for February Term, 1862.

2d. On the 21st day of March, 1862, the cause was upon the day calendar of the Court, was called, and on consent of both parties, reserved generally by the Court.

3d. The cause continued reserved generally, under above reservation, ufitil the 10th October, 1862, when, upon defendant’s motion, it was set down for trial on October 14th, 1862. It was postponed from day to day until the last day of term, when, being too long a cause, it was postponed by the Court until Kovember Term, 1862.

4th. At Kovember Term, 1862, the cause was tried, and a verdict rendered for defendant.

5th. Upon the adjustment of the defendant’s costs, the clerk allowed him five term fees; this adjustment giving to the defendant fees for two of the terms at which the cause stood reserved generally, in addition to the term fees for February, March and October, 1862.

6th. The plaintiff having objected to the allowance of the above term fees for the two terms when the cause stood “ reserved generally,” appealed to the Justice at Special Term at Chambers, (Chief Justice Bosworth,) who made the order which is now appealed from by the defendant.

■- -, for the defendant, appellant.

Lewis S. Thomas, for plaintiff, respondent.

It seems to me that the case agreed upon for the purposes of this appeal by the counsel for the respective parties, plainly is not the case heard by the learned Chief Justice at the Special Term.

p. 699

Fact “second," as agreed upon, presents au action upon the day calendar, of the 21st March, 1862, for trial, which, upon being called, on consent of both parties, was reserved generally by the Court.

The fact presented to the learned Chief Justice at the Special Term, differs most essentially from this. The order appealed from, recites: “It appearing that, during tioo of the terms taxed by the clerk, " * * the cause was reserved generally by the cleric on consent. ■* * *

“ Bule 20 of this Court, providing ‘ regulations as to the calendars,’ permits causes to be reserved generally by a written consent of the attorneys, filed at any time before the case is on the day calendar.” It would seem to follow that, if this action was upon the day calendar, it could be reserved generally only by the order of the Court, and that a written consent was filed under the rule.

The order made at the Special Term, was correct upon the statements of fact there presented, and it must be affirmed; we cannot entertain an appeal from an order made at Special Term, though a statement of facts be agreed upon, where it is manifest no such case was presented to the Court below.

The order appealed from must be affirmed, with costs.