Comstock v. Halleck — 6 N.Y. Super. Ct. 671

Majority

p. 671

Comstock v. Halleck and Miller.

Headnote

Two defendants, who appeared by the same attorney, put in separate answers, to which the plaintiff demurred. The demurrers were allowed, with leave to the defendants to amend on payment of costs. Held, that the plaintiff was entitled to a separate bill of costs against each defendant.

Where a demurrer is noticed for the general term, and placed on the calendar, is then ordered to be heard at the special term, and is placed on the calendar and heard at special term during the same month for which it was so noticed, the prevailing party cannot tax a fee of ten dollars for the general term. He is entitled only to the fee of fifteen dollars for the argument at the special term.

October 24, and 31, 1851.

In this case, the defeúdants put in separate answers by the same attorney, to which the plaintiff demurred. The demurrers were noticed for argument at the October general term, and placed on the calendar, under section 255 of the code as amended in 1851. The general term ordered the demurrers to

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be heard at the special term. The cause was thereupon placed on the October special term calendar and argued.

The plaintiff succeeded on the demurrers, and claimed to tax separate bills of costs; the defendants being allowed to amend on payment of costs. After this question was disposed of in his favor, as noted below, a further question arose on the adjustment of the costs. The plaintiff claimed, besides the fifteen dollars allowed by the code for the argument of the cause at the special term, the fee of ten dollars given “ to either party for every circuit or term at which the cause is necessarily on the calendar and not reached, or is postponed, excluding that on which it is tried or heard.”

E. D. Culver, for the plaintiff.

J. P Crosby, for the defendants.

held that the plaintiff was entitled to tax against each defendant a separate bill of costs on his demurrer to each answer, the defences being several, and a distinct issue of law raised by each. Defendants can always obviate this consequence by joining in their answer.

The other question came before Sandeord, J., who decided that the fee of ten dollars could not be taxed. The cause was heard at the October term, for which the fee is claimed. The transfer from one calendar to another does not alter the case. There was but one term of the court within the meaning of the code. The cause was reached, and it was not postponed. (Both decisions were made with the concurrence of all the justices of the court.)