p. 173RUFUS F. ANDREWS, as Receiver, &c., Respondent, v. ALBERT SCHNITZLER, Appellant.When an action has been noticed for trial, the party finally prevail- ' ing, either at the trial or on special motion for want of prosecution, is entitled to costs for all proceedings after notice of trial, and the usual term costs, not exceeding five, though the notice of trial was not given by him, but by his opponent.
Tillspaugh v. Dick (8 Sow. Pr. 33), distinguished.
Before Freedman and Russell, JJ.Appeal from order denying defendant’s motion for a re-taxation of his costs.
The action was at issue, and was noticed for trial at the January term, 1875, by the plaintiff, and placed on the calendar of jury causes for that term, where it remained until 1878. The defendant never noticed the case for trial. ' The complaint was dismissed January' 3, 1882, for want of prosecution, and defendant noticed his costs for taxation. The plaintiff „ objected, before the clerk, to all except the first and fourth items of the bill, on the ground that the action having been dismissed for failure to prosecute, the defendant was entitled to disbursements, costs before notice of trial, and costs of motion only, and the clerk sustained the objections. The costs were taxed at $20, and the disbursements at $2.27, total' $22.27. Defendant moved at .special term for a new taxation, which the court denied.
Johnson & Cantine, for appellant.
George W. Cotterill, for respondent.
The true construction of the Code in my judgment is, that as long as a cause has been noticed for trial, the party finally pre
p. 174vailing, either at the trial or on special motion for want of prosecution, is entitled to costs for all proceedings after notice of trial, and to the costs for each term, not exceeding five, at which the cause was necessarily on the calendar, though the notice of trial was not given by him, but by his opponent. Neither from the language of the Code nor from any reported case, can I find that a party’s right to the costs in question der pends strictly upon the fact that he noticed the cause for trial. Tillspaugh
v. Dick (
8 How. Pr. 33 ), is plainly distinguishable. In that case there were two defendants. One of them had noticed the cause for trial, and as to him the complaint had been dismissed. As to the defendant who asserted the claim for costs after notice of trial, and for term fees, the cause had been noticed by neither side, and it was in view of this fact, and in reference to this defendant, that the court observed: “ As to this defendant the cause has never been noticed for trial; .... it was never on the calendar as between these parties.”
The costs' under consideration, it seems to me, are given to either party for preparation rendered necessary in consequence of the service of a notice of trial. The preparation to be made is the same whether only one or both parties give such notice. If I am correct in this, it follows that in the case at bar it was an immaterial fact that the defendant had failed to notice the cause for trial, because it appeared that the plaintiff had dope so, and that the cause, had been necessarily on the calendar for more than five terms under said notice, during which time the defendant was compelled to attend, though he was not in a position to take the plaintiff s default.
The order should be reversed with $10 costs, and a new taxation ordered, with instructions to the clerk to allow $15 after notice of trial, and $50 for term fees.
Russell, J., concurred.